Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d). (b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”). (c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions. (d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified). (e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent. (f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf. (g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 4 contracts
Sources: Agreement and Plan of Merger (CBD Energy LTD), Merger Agreement (CBD Energy LTD), Merger Agreement (CBD Energy LTD)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such reasonable actions to will cause (its Subsidiaries and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and its Subsidiaries’ officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) affiliates not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or the making or submission of, engage in any proposal that constitutesnegotiations concerning, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish provide any confidential non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the propertieshave any discussions with, books or records of any Company Entity person relating to, any Person that has made Acquisition Proposal; provided that, in the event the Company receives an unsolicited bona fide Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining and the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines concludes in good faith that such proposal constitutes, or is reasonably likely to lead to, Acquisition Proposal constitutes a Superior Proposal, the Company may, and (z) the Company’s Board determines in good faithmay permit its Subsidiaries and its and its Subsidiaries’ Representatives to, after consultation with its outside legal counsel, that the failure furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the extent that the Company Board’s Board concludes in good faith (and based on the advice of counsel) that failure to take such actions would result in a violation of its fiduciary duties under applicable Lawlaw; except that (1) provided that, prior to providing any nonpublic information permitted to be provided pursuant to the Company foregoing proviso, it shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available without regard to any other Person modification thereof pursuant hereto or group in connection lapse of time). The Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change persons other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, Proposal and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall will use its reasonable best efforts to enforce any such confidentiality or similar agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives relating to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible an Acquisition Proposal. The Company shall will within one business day advise Parent following receipt of any Acquisition Proposal and the substance thereof (i) take including the necessary steps to promptly inform the Representatives involved in the Transactions identity of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not person making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (iiAcquisition Proposal), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account will keep Parent apprised of any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to related developments on a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)current basis.
Appears in 3 contracts
Sources: Merger Agreement (Cullen Frost Bankers Inc), Merger Agreement (Summit Bancshares Inc /Tx/), Merger Agreement (Cullen Frost Bankers Inc)
Acquisition Proposals. (a) Except From the execution of this Agreement until the earlier to occur of (i) the date of the termination of this Agreement in accordance with its terms and (ii) the Closing Time, except as provided in this expressly permitted by Section 6.2(a) and in Section 6.2(d6.9(b), the Company Seller shall not (not, and shall cause the Company Subsidiaries to not), its Affiliates and shall take such reasonable actions to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, their respective directors, investment bankers, attorneys, accountants, financial advisors, agents, officers and other representatives (collectively, the “Representatives”) employees not to, (i) and the Seller shall use its reasonable best efforts to cause its and its Affiliates’ other Representatives not to, directly or indirectly indirectly, (A) solicit, initiate, solicit, knowingly encourage, or knowingly facilitate (including by way any Acquisition Proposal or any inquiry, expression of furnishing non-public information) any inquiries with respect tointerest, proposal, offer or request for information that could reasonably be expected to lead to or result in an Acquisition Proposal, or the making or submission ofconsummation thereof, (B) other than to inform any Person of the existence of the provisions contained in this Section 6.9, enter into any discussions or negotiations regarding, or furnish to any Person any information in connection with, or enter into any Contract or other agreement or understanding with respect to, any proposal Acquisition Proposal or any inquiry, expression of interest, proposal, offer or request for information that constitutes, or would could reasonably be expected to lead to, to or result in an Acquisition Proposal, or (iiC) participate resolve or engage agree to do any of the foregoing. It is agreed that any violation of the restrictions set forth in discussions or negotiations with, furnish this Section 6.9(a) by any non-public information or data relating to any Company Entity Representative of the Seller or any Company Asset to, or provide access to of its Affiliates shall constitute a breach of this Section 6.9 by the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Seller.
(b) Notwithstanding the immediately foregoing sentenceforegoing, at any time prior to obtaining the Company Required VoteSeller Stockholder Approval, in response to a bona fide written Acquisition Proposal (which Acquisition Proposal was made after the date of this Agreement and did not result from a breach of Section 6.9(a)) that the Board determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes or could reasonably be expected to lead to a Superior Proposal, the Company Seller shall give the Purchaser written notice of such determination promptly after the Board makes such determination (and in no event later than forty-eight (48) hours after such determination) and, after the Company’s Board are permitted to delivery of such written notice, the Seller and its Representatives may take any actions described action that would otherwise be prohibited by Section 6.9(a); provided, however, that the Seller and Person making such Acquisition Proposal enter into a customary confidentiality agreement containing terms no less favorable to the disclosing party than those set forth in the Confidentiality Agreement (excluding any standstill agreement contained therein) (an “Acceptable Confidentiality Agreement”); provided, that all such information (to the extent that such information has not been previously provided or made available to the Purchaser) is provided or made available to the Purchaser substantially concurrently with the time it is provided or made available to such Person.
(c) The Seller shall notify the Purchaser promptly (but in no event later than forty-eight (48) hours after receipt by the Seller or any of its Affiliates (or any of its or their Representatives) of any Acquisition Proposal, any inquiry that could be reasonably expected to lead to an Acquisition Proposal or of any request for information relating to the Seller or any of its Affiliates or for access to the business, properties, assets, books, or records of the Seller or any of its Affiliates by any Person that, to the knowledge of the Seller, may be considering making, or has made, an Acquisition Proposal, which notice shall be provided orally and in writing and shall provide the material terms and conditions of, any such Acquisition Proposal, indication, or request (including the identity of the Person making any such Acquisition Proposal, indication or request, and copies of any related documentation, including any related financing commitments). Thereafter, the Seller shall keep the Purchaser promptly informed in writing on a reasonably current basis of the status of, and any material changes to, the terms of any such Acquisition Proposal (including providing the Purchaser a notification in writing within forty-eight (48) hours following any determination by the Board pursuant to Section 6.9(b) or any material changes to the terms of any such Acquisition Proposal) and any discussions and negotiations concerning the material terms and conditions thereof.
(d) Except as otherwise provided in Section 6.9(e) and Section 6.9(f), the Board (or any committee thereof) shall not (i) (w) withdraw or publicly propose to withdraw, or modify or qualify (or public propose to modify or qualify) in any manner adverse to Purchaser, the Board Recommendation, (x) fail to include the Board Recommendation in the Proxy Statement, (y) if a tender offer or exchange offer that constitutes an Acquisition Proposal shall have been commenced by a person that is not affiliated with the Purchaser, fail to publish, send or give to its stockholders, pursuant to Rule 14e-2 under the 1934 Act, within the ten (10) Business Day period after such tender offer or exchange offer is first published, sent or given, or subsequently amended in any material respect or withdraw, a statement recommending that stockholders reject such tender offer or exchange offer and affirm the Board Recommendation, or (z) approve, adopt or recommend any Acquisition Proposal, or propose publicly to approve, adopt or recommend, any Acquisition Proposal (any action in this clause (i), an “Adverse Recommendation Change”), or (ii) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, or allow the Seller or any of its Affiliates to execute or enter into any Contract or other agreement or understanding (written or oral, binding or non-binding, preliminary or definitive), other than an Acceptable Confidentiality Agreement to the extent expressly permitted by Section 6.9(b), with any Person constituting or relating to, or that is intended to or could reasonably be expected to lead to or result in, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Seller to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with this Section 6.2(aAgreement, any of the Transactions, or requiring, or reasonably expected to cause, the Seller to fail to comply with this Agreement (any such document, agreement or arrangement, an “Alternative Acquisition Agreement”).
(e) with respect Notwithstanding anything to a third party if (w) the Company has received contrary in this Agreement, if, at any time prior to obtaining the Seller Stockholder Approval, a written bona fide Acquisition Proposal from such third party (that is first made after the date hereof and such Acquisition Proposal did not result from a breach of this Section 6.2(a)6.9 is made, whether by any Company Entity and the Board concludes in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and the failure to approve or any Representative (as if all Company Entities and Representatives were bound by recommend such Superior Proposal would be inconsistent with the Board’s fiduciary duties to the stockholders of the Seller under Applicable Law, the Board may make an Adverse Recommendation Change and/or the Seller may terminate this Agreement in accordance with this Section 6.2(a6.9(e) and Section 3.7(e)); provided, however, that the Seller shall not terminate this Agreement pursuant to this Section 6.9(e) or Section 3.7(e) unless the Seller (i) has complied with and not breached its obligations under this Section 6.9, including its obligations set forth in Section 6.9(f), (xii) pays, or causes to be paid, to the Purchaser the Termination Fee prior to or concurrently with such termination, and (iii) concurrently with such termination, enters into a definitive written Alternative Acquisition Agreement that documents all the terms and conditions of such Superior Proposal.
(f) Notwithstanding anything to the contrary in this Agreement, and as permitted by Applicable Law and the Board’s fiduciary duties, the Board shall not make an Adverse Recommendation Change pursuant to Section 6.9(e) and the Seller shall not be entitled to terminate this Agreement pursuant to Section 6.9(e) or Section 3.7(e) unless (i) the Company gives Seller shall have provided the Parent Purchaser at least five (5) Business Days’ prior written notice advising the Purchaser that it intends to take such action, which notice required by Section 6.2(e)shall (A) state that the Seller has received a Superior Proposal, (yB) after receiving specify the advice material terms and conditions of its financial advisorssuch Superior Proposal, including the Company’s Board determines in good faith that identity of the Person making such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (zC) enclose the Company’s most recent draft of any agreements intended to be entered into with the Person making or providing such Superior Proposal (or any Affiliate of such Person), (ii) if requested by the Purchaser, the Seller and its Representatives shall have negotiated in good faith during such five (5) Business Day period following delivery of such written notice with the Purchaser concerning any revisions to the terms of this Agreement and the Transaction Documents that the Purchaser proposes in response to such Superior Proposal and (iii) after complying with clauses (i) and (ii) of this Section 6.9(f), the Board determines shall have determined in good faith, after consultation with its outside legal counselcounsel and financial advisor, that the failure such Acquisition Proposal continues to participate in such negotiations or discussions or constitute a Superior Proposal, after giving due consideration to furnish such information or data to such third party is likely any changes proposed to be inconsistent with made to this Agreement by the Company Board’s fiduciary duties under applicable Law; except that Purchaser in writing. The parties acknowledge and agree that, (1A) if the Company shall not deliver any non-public information Purchaser, within five (5) Business Days following its receipt of the written notice referred to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit 6.9(f), makes a proposal that, as determined in good faith by the Company or Board (after consultation with its outside counsel and financial advisor), results in the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an applicable Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under no longer being a Superior Proposal, then the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company Board shall have no right to make an Adverse Recommendation Change other than in accordance with pursuant to Section 6.2(d).
(b) Except as provided in Section 6.2(d6.9(e) and in the Seller shall have no right to terminate this Agreement pursuant to Section 6.2(g), each 6.9(e) or Section 3.7(e) as a result of the Company, the Company’s Boardsuch Acquisition Proposal, and each Company Board Committee shall not (B) any (i) withdraw or withhold (or amend or modify in a manner adverse material revisions to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board financial terms or any Company Board Committee other material terms of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition a Superior Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring revisions to the Company to abandon, terminate, or fail to consummate the Merger financial terms or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect other material terms to an Acquisition Proposal that the Board had determined no longer constitutes a Superior Proposal, shall constitute a new Acquisition Proposal and shall in each case require the Company’s Seller to deliver to the Purchaser a new written notice pursuant to this Section 6.9(f) and a new five (5) Business Day period shall commence thereafter. The Board is permitted shall have no right to make an Adverse Recommendation Change if (ipursuant to Section 6.9(e) a written Acquisition Proposal (that did not result from a breach of and the Seller shall have no right to terminate this Agreement pursuant to Section 6.2(a), whether by any Company Entity 6.9(e) or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))3.7(e) is made to unless the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent has complied with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as procedures set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (vSection 6.9(e) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modifiedSection 6.9(f).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing contained in this Agreement will Section 6.9 shall prohibit the Seller or restrict the Company’s Board from effecting complying with its disclosure obligations under Applicable Law regarding an Acquisition Proposal, including (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A under the 1934 Act or (ii) making any “stop, look and listen” communication to the stockholders of the Seller pursuant to Rule 14d-9(f) under the 1934 Act; provided, however, that neither the Seller nor the Board may effect an Adverse Recommendation Change not involving or relating to an Acquisition Proposal except in response to a material adverse development or change in circumstances compliance with respect this Section 6.9.
(h) Notwithstanding anything to the Parent Business occurring contrary contained in this Section 6.9 or arising after elsewhere in this Agreement, the Signing Date, if provisions of this Section 6.9 shall not apply to (i) any transaction relating to Seller’s businesses other than the CompanyPurchased Business and/or Seller’s Board determines in good faith after consultation with its outside legal counsel that assets other than the Purchased Assets, so long as clause (B) of the definition of Acquisition Proposal is not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law satisfied, or (ii) subject to compliance with applicable Law, any transaction that is conditioned on the Company provides the Parent three Business Days’ prior written notice consummation of the Company’s intention to make public an Adverse Recommendation Change because Transaction, including, without limitation, any investment in or tender offer for Common Stock or other equity securities of such material development Seller or change in circumstances (such noticeany merger, a “Notice consolidation, recapitalization or other business combination involving Seller or any of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end its Affiliates or any sale of assets of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Seller.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vecima Networks Inc.), Asset Purchase Agreement (Concurrent Computer Corp/De)
Acquisition Proposals. (a) Except as provided in From and after the date of this Section 6.2(a) and in Section 6.2(d)Agreement, the Company shall not (shall, and shall cause the Company Subsidiaries to not)to, and it shall take such use its reasonable actions best efforts to cause (any of its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their officers, directors, investment bankersemployees, financial advisors, attorneys, accountants, financial advisors, agents, representatives and other representatives agents (collectively, the “Company Representatives”) not to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and promptly request that all confidential information furnished by or on behalf of the Company with respect thereto be returned to the Company or destroyed. From and after the date of this Agreement until the termination hereof and except as permitted by the following provisions, the Company shall not, and it shall use its reasonable best efforts to cause the Company Subsidiaries and the Company Representatives not to (i) directly or indirectly solicit, initiate, solicit, knowingly encourage, encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, of an Acquisition Proposal, or (ii) enter into any agreement, arrangement or understanding with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 6.02(a)) or (iii) other than informing Persons of the existence of the provisions contained in this Section 6.02, participate or engage in any discussions or negotiations withregarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information or data relating with respect to any the Company Entity or any Company Asset to, Subsidiary or provide furnish any Person with access to the properties, books properties of the Company or records any Company Subsidiary in connection with any inquiries or the making of any Company Entity to, any Person proposal that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior any Acquisition Proposal; provided, and (z) however, that, at any time prior to obtaining the Company’s Required Company Vote, in response to an unsolicited Acquisition Proposal that the Board of Directors of the Company determines in good faith, after consultation with its outside legal counselcounsel and a financial advisor of nationally recognized standing (including Wachovia Capital Markets, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(gLLC), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw constitutes or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could is reasonably be expected likely to lead to any a Superior Proposal, and which Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in was made after the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, date hereof and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))6.02, the Company may, (i) is made furnish information with respect to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) Company Subsidiaries to the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such noticePerson than the Confidentiality Agreement; provided, a “Notice of Acquisition Proposal”)however, that all such information has previously been, or is, in substance, provided to Parent contemporaneously as it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect is provided to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation ChangePerson, and subject to compliance (ii) participate in discussions or negotiations with applicable Law, an additional three Business Days following the provision of Person making such new Notice of Acquisition Proposal, and its officers, directors, employees, financial advisors, attorneys, accountants, representatives and agents regarding such Acquisition Proposal.
(vb) at the end For purposes of this Agreement, (i) “Superior Proposal” means an Acquisition Proposal from any Person to acquire, directly or indirectly, for consideration consisting of cash and/or securities, beneficial ownership of more than 50% of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension combined voting power of such period required thereunder), the Company then outstanding or all or substantially all of the assets of the Company and the Company Subsidiaries that the Board again makes of Directors of the determination Company determines in its good faith judgment, after consultation with its outside legal counsel and a financial advisors advisor of nationally recognized standing (and including Wachovia Capital Markets, LLC), taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal (including any break-up fees, expense reimbursement provisions and conditions to consummation) would be more favorable from a financial point of view to the stockholders of the Company than the transactions contemplated by this Agreement (including any adjustment or modification of to the terms hereof that the and conditions proposed by Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of such Acquisition Proposal, ) and such proposed adjustment or modification, if implemented, would reverse the determination is reasonably capable of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to being completed on the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, proposed; and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, “Acquisition Proposal, ” means any bona fide written proposal or inquiry or with whom offer from any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes Person relating to any terms thereof and providing to the Parent detailed, written summaries (A) direct or indirect acquisition or purchase of all assets of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return Company Subsidiary that constitutes 20% or destroy (and certify such destruction in writing by an executive officer more of such Person) all confidential information heretofore furnished to such Person by the net revenues, net income or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with assets of the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, and the Company provides Subsidiaries, taken as a whole, (B) direct or indirect acquisition or purchase of beneficial ownership of equity securities of the Parent three Business Days’ prior written notice Company representing 20% or more of the combined voting power of the Company’s intention to make public an Adverse Recommendation Change because of such material development , (C) any tender offer or change exchange offer that if consummated would result in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination Person beneficially owning equity securities of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment representing 20% or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor more of the Merger and combined voting power of the Company, or (D) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the transactions contemplated by this Agreement, as so adjusted or modified).
Appears in 3 contracts
Sources: Merger Agreement (Juno Lighting Inc), Merger Agreement (Fremont Partners Lp), Merger Agreement (Square D Co)
Acquisition Proposals. (a) Except as provided Since April 13, 2001, and continuing through the Effective Time or the earlier termination of this Agreement in this Section 6.2(a) and in Section 6.2(d)accordance with its terms, the Company agrees that:
(i) neither it nor any of its Subsidiaries has initiated, solicited or encouraged, directly or indirectly, or shall initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including any proposal or offer to its stockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation, share exchange, sale of assets or similar transaction involving all or any significant portion of the assets or any equity securities of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement and the Partnership Merger Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or has engaged or shall engage in any negotiations concerning or provided or shall provide any confidential information or data to, or had or shall have any discussions with, any person relating to an Acquisition Proposal, or otherwise, has facilitated or shall facilitate any effort or has attempted or shall attempt to make or implement an Acquisition Proposal (for the avoidance of doubt, responding to an unsolicited inquiry by informing such inquirer that the Company is subject to this Section 4.1 and instructing such inquirer to review this Section of the Agreement shall not (and shall cause be a violation of this Section 4.1); provided, however, that the Company Subsidiaries may provide confidential information to notG. Realco LLC, Trans Healthcare, Inc., ▇▇▇▇▇▇▇▇▇▇▇ Health Trust and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Existing Interested Parties"), so long as the Existing Interested Parties have each entered into an appropriate confidentiality and standstill agreement in a form satisfactory to the Company;
(ii) it has directed, and shall take such use its reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions best efforts to cause) each Company Entity’s , its officers, directors, investment bankersemployees, attorneysagents or financial advisors not to engage in any of the activities restricted by Section 4.1(i); provided, accountantshowever, that this shall not prevent the Continuing Stockholders from taking any action prohibited by this Section 4.1 and that any such action shall not constitute a violation of this Section 4.1;
(iii) except for providing confidential information to the Existing Interested Parties as described in Section 4.1(i), it has ceased and caused to be terminated any existing activities, discussions or negotiations theretofore conducted with any person with respect to any Acquisition Proposal and has taken the necessary steps to inform the individuals or entities referred to in Section 4.1(i) of the obligations undertaken in this Section 4.1; and
(iv) it will notify Acquiror promptly if the Company has received or receives any such inquiries or proposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with it; provided, however, that nothing contained in this Agreement shall restrict the Board or Special Committee (or the officers, directors, employees, agents and financial advisors, agents, and other representatives (collectively, advisors of the “Representatives”Company acting at the direction of the Board or Special Committee) not to, from (i) directly prior to the Stockholders Meeting, entering into discussions or indirectly initiatenegotiations with any person that makes a bona fide, solicitwritten and unsolicited Acquisition Proposal, knowingly encourageif (A) the Board or Special Committee determines in good faith, or facilitate (including by way on advice of furnishing non-public information) any inquiries with respect tocounsel, or that the making or submission of, any proposal that constitutes, or failure to take such action would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (violate its duties under applicable law and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutesis, or is reasonably likely to lead tobe, a Superior ProposalAcquisition Proposal (as defined below), (B) prior to entering into discussions or negotiations with such person, the Company provides written notice to Acquiror to the effect that it is entering into discussions with such person and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1C) the Company shall keeps Acquiror informed of the status (not deliver the terms or identity of parties) of any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable discussions or negotiations; and (ii) to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third partyextent applicable, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s 's stockholders a position with respect to an Acquisition Proposal pursuant to Rule contemplated by Rules 14d-9 or 14e-2(a) and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; provided, however, that the Board or from making any similar disclosureSpecial Committee may not approve or recommend an Acquisition Proposal, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) or withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), Acquiror its approval or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee recommendation of this Agreement, Agreement and the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and unless such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 3 contracts
Sources: Merger Agreement (G & L Tender LLC), Merger Agreement (G&l Realty Corp), Merger Agreement (Gottlieb Daniel M)
Acquisition Proposals. (a) Except From the date hereof until the Effective Time and except as provided in expressly permitted by the following provisions of this Section 6.2(a) and in Section 6.2(d)6.04, the Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s nor will it permit any of its subsidiaries to, nor will it authorize or permit any of its officers, directors, directors or employees of or any investment bankersbanker, attorneys, accountantsaccountants or other advisors or representatives to, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourageencourage the submission of any Acquisition Proposal (as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing non-public information) furnish to any inquiries person any information with respect to, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(a) shall prohibit the Company Board from furnishing information to, or (ii) participate or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide written Acquisition Proposal if, or provide access and only to the propertiesextent that (A) the Offer shall not have closed, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (wB) the Company has received a written Acquisition Proposal from such third party (Board, after consultation with and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving based upon the advice of its financial advisorsindependent legal counsel, the Company’s Board determines in good faith that such proposal constitutesaction is necessary for the Company Board to comply with its fiduciary duties to its stockholders under applicable Law, or (C) the Company Board, after consultation with its financial advisor, determines in good faith that such Acquisition Proposal is reasonably likely to lead to an Acquisition Proposal that, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to its stockholders from a financial point of view than the Offer and the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal") and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/ standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of such Acquisition Proposal and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries, affiliates, officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any possible Acquisition Proposal and shall notify each third party that it, or any officer, director, investment advisor, financial advisor, attorney or other representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board no longer seeks the making of any Acquisition Proposal. The Company will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.04(a).
(b) The Company Board will not withdraw or modify, or propose to withdraw or modify, in a Superior Proposalmanner adverse to Parent, and (z) its approval or recommendation of this Agreement, the Company’s Offer or the Merger unless the Company Board determines in good faith, after consultation with its outside legal counseltaking into account all legal, financial and regulatory aspects, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with do so would constitute a breach by the Company Board’s Board of its fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third partyprovided, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Lawhowever, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person Board may not approve or group recommend (and in connection with any actual therewith, withdraw or potential modify its approval or recommendation of this Agreement, the Offer or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company first shall have complied with its obligations 42 set forth in Section 8.03(a), and the time period referred to in the last sentence of Section 8.03(a) has expired) and unless it shall have first consulted with outside counsel and have determined that was not previously made available the refusal to do so would constitute a breach by the Parent, contemporaneously with the delivery Company Board of such information to (or as promptly as practicable after such information is delivered to) such Personits fiduciary duties under applicable Law. Nothing contained in this Section 6.2 will 6.04(b) shall prohibit the Company or the Company’s Board from taking and disclosing to the Company’s its stockholders a position with respect to an Acquisition Proposal pursuant to contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosuredisclosure to its stockholders which, in either case to the extent required by applicable Law, including good faith reasonable judgment of the Company Board’s fiduciary duties; except that compliance with such rules will , based on the advice of independent legal counsel, is required under applicable Law. Notwithstanding anything contained in this Agreement to the contrary, any action by the Company Board permitted by, and taken in accordance with, this Section 6.04(b) shall not constitute a breach of this Agreement by the Company. Nothing in this Section 6.04(b) shall (i) permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
terminate this Agreement (b) Except except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (iArticle 8 hereof) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into affect any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination obligations of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and under this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Unisource Worldwide Inc), Merger Agreement (Georgia Pacific Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company shall, the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its officers, directors, investment bankersemployees, attorneys, accountants, financial advisors, agents, representatives and other representatives (collectively, the “Representatives”) not agents to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition ProposalProposal (as defined in Section 6.2(b) hereof). The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring its Subsidiaries will not, and will cause their respective officers, directors, employees and investment bankers, attorneys, accountants or other agents retained by the Company or any portion thereof to return of its Subsidiaries not to, (i) solicit, directly or destroy through an intermediary, any inquiries with respect to, or the making of, any Acquisition Proposal, or (and certify such destruction ii) except as permitted below, engage in writing by an executive officer of such Person) all negotiations or discussions with, or furnish any confidential information heretofore furnished relating to such Person by the Company or on its behalf.
Subsidiaries to, any Third Party (gas defined in Section 6.2(b)) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal (other than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in response this Section 6.2, the Company (and any Person referred to above) may furnish information to, and participate in discussions or negotiations with, any Third Party which submits an unsolicited written Acquisition Proposal to the Company if the Board by a material adverse development majority vote determines, based as to legal matters upon the advice of legal counsel, that furnishing such information or change participating in circumstances such discussions or negotiations is required by applicable law (including fiduciary principles thereof); provided, that nothing herein shall prevent the -------- Board from taking, and disclosing to the Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; and provided further, that the Company shall not -------- ------- enter into a written agreement providing for a Third Party Transaction (as defined in Section 6.2(b)) except concurrently with or after the termination of this Agreement (except with respect to confidentiality agreements to the extent expressly provided below). The Company shall promptly provide Parent Business occurring or arising after with a reasonable description of any Acquisition Proposal received (including a summary of all material terms of such Acquisition Proposal and, unless it is prohibited from disclosing the Signing Datesame, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not identity of the Person making such Adverse Recommendation Change is likely to be inconsistent Acquisition Proposal). The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal with a Third Party. In no event shall the Company Board’s fiduciary duties under applicable Law (ii) subject provide material, non-public information to compliance any Third Party making an Acquisition Proposal unless such party enters into a confidentiality or similar agreement containing provisions believed by the Company to reasonably protect the confidentiality of such information. Promptly after entering into any confidentiality or similar agreement with applicable Lawany Person on or after February 6, 1996, the Company provides shall notify Parent of such event and identify the Parent three Business Days’ prior written notice Person with whom the agreement was executed.
(b) For purposes of this Agreement, the term "ACQUISITION PROPOSAL" shall mean any proposal, whether in writing or otherwise, made by a Third Party to enter into a Third Party Transaction. "THIRD PARTY TRANSACTION" means the acquisition of beneficial ownership of all or a material portion of the Company’s intention to make public an Adverse Recommendation Change because of such material development assets of, or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii)majority equity interest in, the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response pursuant to a Notice merger, consolidation or other business combination, sale of Material Developmentshares of capital stock, and such proposed adjustment sale of assets, tender offer or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then exchange offer or other business acquisition or combination transaction involving the Company and Parent shall negotiate in good faith (during its Subsidiaries, including any single or multi-step transaction or series of related transactions which is structured to permit such Third Party to acquire beneficial ownership of any material portion of the assets of, or a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to majority of the terms hereof and, upon implementation of such adjustment or modificationequity interest in, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of other than the Merger and transactions contemplated by this Agreement). "THIRD PARTY" means any Person other than Parent, as so adjusted Purchaser or modified)any affiliate thereof.
Appears in 2 contracts
Sources: Merger Agreement (Forum Group Inc), Merger Agreement (Marriott International Inc)
Acquisition Proposals. (a) Except as provided in Subject to the other provisions of this Section 6.2(a) and in Section 6.2(d)6.5, during the Interim Period, the Company shall not (not, and shall cause each of the Company Subsidiaries, and its and their officers and directors, managers or equivalent not to, and shall use its reasonable best efforts to cause any other Representatives of the Company or the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, directly or indirectly (i) directly or indirectly solicit, initiate, solicitknowingly encourage or knowingly facilitate any inquiry, knowingly encouragediscussion, offer or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal request that constitutes, or would could reasonably be expected to lead to, a Company Acquisition Proposal (provided that for purposes of this Section 6.5(a), the references in the definition of Company Acquisition Proposal to “twenty percent (20%)” shall be deemed to be five percent (5%)) (an Acquisition Proposal“Inquiry”), or (ii) participate or engage in any discussions or negotiations withregarding, or furnish to any Third Party any non-public information in connection with, or data relating to otherwise cooperate in any way with, or knowingly facilitate in any way any effort by, any Third Party in connection with, any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Inquiry, (iii) approve or recommend a Company Acquisition Proposal. , or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5(b)) providing for or relating to a Company Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the immediately foregoing sentencecontrary in this Section 6.5, at any time prior to obtaining the requisite Company Required VoteStockholder Approval, the Company and may, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party received after the Company’s Board are permitted to take any actions described in clause (ii) date of this Section 6.2(a) with respect to a third party if Agreement (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a6.5) (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company and the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent, be provided to Parent prior to or simultaneously with providing it to such Third Party), whether by any and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Entity or any Representative Acquisition Proposal if, in the case of each of clauses (as if all Company Entities i) and Representatives were bound by this Section 6.2(a))), (ii): (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith faith, after consultation with its financial and legal advisors, that such proposal Company Acquisition Proposal constitutes, or is could reasonably likely be expected to lead to, a Superior Proposal, and (zy) the Company’s Company Board determines in good faith, after consultation with legal counsel, that failure to take such action would be reasonably likely to be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of the foregoing clauses (i) and (ii), such Company Acquisition Proposal was not solicited in violation of Section 6.5.
(c) The Company shall notify Parent promptly (but in no event later than one (1) Business Day) after receipt of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Company Acquisition Proposal or Inquiry and the material terms and conditions of any Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and in any event within one (1) Business Day, notify Parent, orally and in writing, if it enters into discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any person in accordance with this Section 6.5(c) and keep the other party informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to Parent, Parent LP or Merger Sub, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation in the Joint Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal within ten (10) business days of the request of Parent and reaffirm the Company Recommendation within ten (10) business days (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), a “Company Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval and subject to compliance with Section 6.5(f), Section 6.5(g), if applicable, and Section 8.3, the Company Board shall be permitted to (x) terminate this Agreement to enter into a definitive agreement, including an Alternative Acquisition Agreement, with respect to a Superior Proposal if the Company Board (A) has received a Company Acquisition Proposal that, in the good faith determination of the Company Board, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Parent pursuant to, Section 6.5(f), and (B) determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, or (y) effect a Company Adverse Recommendation Change if, after the date of this Agreement: (I) the Company receives an unsolicited bona fide written Company Acquisition Proposal by a Third Party that did not result from a breach of this Section 6.5 and that the Company Board determines in good faith, after consultation with its outside financial and legal counseladvisors, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity)constitutes, or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a))to, or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) and the Company’s Company Board determines in good faith, after consultation with its outside financial and legal counseladvisors, that the failure to make take such an Adverse Recommendation Change is likely to action would be inconsistent with the Company Board’s fiduciary directors’ duties under applicable Law, or (ivII) subject in circumstances not involving or relating to compliance a Company Acquisition Proposal, a Company Intervening Event has occurred or arisen and the Company Board determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ duties under applicable Law.
(e) Except as permitted by this Section 6.5(e), neither the Parent Board nor any committee thereof shall (i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to the Company or the Company LP, the Company provides Parent Recommendation, or (ii) fail to include the Parent three Business Days’ prior written notice Recommendation in the Joint Proxy Statement or any Schedule 14D-9, as applicable (any of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal actions described in clauses (such noticei) or (ii), a “Notice of Acquisition ProposalParent Adverse Recommendation Change”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions . Notwithstanding anything to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as contrary set forth in the Notice of Acquisition Proposal as provided this Agreement, at any time prior to the Parent), then the Company must provide to obtaining the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation ChangeStockholder Approval, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, Section 6.5(g) and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder)Section 8.3, the Company Parent Board again makes shall be permitted to effect a Parent Adverse Recommendation Change if, after the determination date of this Agreement a Parent Intervening Event has occurred or arisen and the Parent Board determines in good faith faith, after consultation with its outside financial and legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof advisors, that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make take such Adverse Recommendation Change is likely to action would be inconsistent with the Company Board’s fiduciary directors’ duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company Board shall (i) take the necessary steps not be entitled to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in terminate this Agreement will prohibit or restrict the Company’s Board from effecting an effect a Company Adverse Recommendation Change not as permitted under Section 6.5(d) in circumstances involving or relating to an a Company Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if unless (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior has provided a written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material DevelopmentSuperior Proposal”); ) to Parent that the Company intends to take such action and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that it is considering the basis of such a recommendation change and summarizing in reasonable detail action and, to the reasons therefor; and (iii) at extent not prohibited by confidentiality restrictions, identifying the end of the three-Business Day period described in the immediately foregoing clause third party making such Superior Proposal, (ii), ) during the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).five
Appears in 2 contracts
Sources: Merger Agreement (Thomas Properties Group Inc), Merger Agreement (Parkway Properties Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) From and in Section 6.2(d)after the date hereof, the Company shall will not (and shall cause the Company and the Subsidiaries to not), and shall take such reasonable actions will use their best efforts to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their respective directors, officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, agentslegal counsel, accountants and other agents and representatives (collectivelynot to initiate or solicit, directly or indirectly, any inquiries or the “Representatives”) not making of any proposal or offer with respect to, (i) directly engage in negotiations concerning, provide any information or indirectly initiatedata to, solicitany person relating to any acquisition, knowingly encourage, business combination or facilitate purchase (including by way of furnishing non-public informationa tender or exchange offer) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or of (iii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity all or any Company Asset to, or provide access to significant portion of the properties, books or records assets of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause Subsidiaries, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% or more of the outstanding shares of capital stock of any Subsidiary of the Company (a "Takeover Proposal"), other than the Merger; provided, however, that nothing contained in this Section 6.2(a7.2 shall prohibit the Board of Directors of the Company from (i) with respect furnishing information to (but only pursuant to a third party if (wconfidentiality agreement in customary form) or entering into discussions or negotiations with any person or group that makes a Superior Proposal that was not solicited by the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal or which did not otherwise result from a breach of this Section 6.2(a)7.2, whether by any Company Entity or any Representative (as if all Company Entities if, and Representatives were bound by this Section 6.2(a)))only to the extent that, (xA) the Company gives Board of Directors of the Parent the notice required by Section 6.2(e)Company, (y) after receiving based upon the advice of its financial advisorsoutside legal counsel, the Company’s Board determines in good faith that such proposal constitutesaction is reasonably necessary for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) concurrently with furnishing such information to, or is reasonably likely to lead toentering into discussions or negotiations with, a such person or group making this Superior Proposal, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, and (zC) the Company’s Company keeps Parent informed of the status and all material information including the identity of such person or group with respect to any such discussions or negotiations to the extent such disclosure would not constitute a violation of any applicable law. For purposes of this Agreement "Superior Proposal" means any Takeover Proposal which the Board determines of Directors of the Company concludes in its good faith, after consultation with its faith judgment (based on the advice of outside legal counselcounsel and a financial advisor of a nationally recognized reputation) to be more favorable to the Company's stockholders than the Merger and for which financing, to the extent required, is fully committed, subject to customary conditions; provided, however, that the failure reference to participate "15%" in clauses (ii) and (iii) of the definition of Takeover Proposal shall be deemed to be references to "51%". The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person conducted heretofore with respect to any of the foregoing and will notify Parent immediately in writing if any such inquiries or proposals (including the material terms and conditions thereof) are received by, any such information is requested from, or any such negotiations or discussions or to furnish such information or data to such third party is likely are sought to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Lawinitiated or continued with, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such PersonCompany. Nothing contained in this Section 6.2 will 7.2 shall prohibit the Company or the Company’s Board from taking and disclosing to the Company’s its stockholders a position with respect to an Acquisition Proposal pursuant to contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosuredisclosure to its stockholders if, in either case to the extent required by applicable Law, including good faith judgment of the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each Board of Directors of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure so to make such an Adverse Recommendation Change is likely to disclose may be inconsistent with the Company Board’s fiduciary duties its obligations under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)law.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Acxiom Corp), Merger Agreement (Acxiom Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not)WBKC will, and shall take such reasonable actions to will cause (each of its Subsidiaries to, and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and their respective officers, directors, investment bankersand representatives (including KBW) to, attorneysimmediately cease and cause to be terminated any existing solicitations, accountantsdiscussions, financial advisorsor negotiations with any Person concerning an Acquisition Proposal (as defined in Section 5.06(e)). During the period from the date of this Agreement through the Effective Time, agentsWBKC shall not terminate, amend, modify, or waive any material provision of any confidentiality or similar agreement to which WBKC or any of its Subsidiaries is a party (other than any involving Horizon).
(b) Except as permitted in this Section 5.06, WBKC shall not, and other shall cause its Subsidiaries and any of their respective directors, officers, and representatives (collectively, the “Representatives”including KBW) not to, (i) directly or indirectly solicit, initiate, solicit, or knowingly encourageencourage or facilitate, or take any other action designed to, or that could reasonably be expected to, facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) initiate, participate in, or engage in knowingly encourage any discussions or negotiations with, furnish or otherwise knowingly cooperate in any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, way with any Person that has made an Acquisition Proposal or in contemplation of regarding an Acquisition Proposal. Notwithstanding the immediately foregoing sentence; provided, however, that, at any time prior to obtaining the Company Required Voteapproval of the Merger by WBKC’s shareholders, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to if WBKC receives a third party if (w) the Company has received a written bona fide Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach that the WBKC Board of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board Directors determines in good faith that such proposal constitutes, constitutes or is reasonably likely to lead to a Superior Proposal (as defined in Section 5.06(f)) that was not solicited after the date hereof and did not otherwise result from a breach of WBKC’s obligations under this Section 5.06, WBKC may furnish, or cause to be furnished, non-public information with respect to WBKC and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to Horizon prior to or at the same time it is provided to such Person) and may participate in discussions and negotiations regarding such proposal if (A) the WBKC Board of Directors determines in good faith, and following consultation with its outside legal counsel and financial advisor, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to WBKC’s shareholders under applicable law, and (B) prior to taking such action, WBKC has used its reasonable best efforts to enter into a confidentiality agreement with such Person containing terms no less favorable to WBKC than those contained in the Confidentiality Agreement (as defined in Section 11.09) and which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with WBKC. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(b) by any representative (including KBW) of WBKC or its Subsidiaries shall be a breach of this Section 5.06 by WBKC.
(c) Neither the WBKC Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw, or modify in a manner adverse to Horizon, or propose to withdraw or modify in a manner adverse to Horizon (or take any action inconsistent with), the recommendation by such WBKC Board of Directors or any such committee regarding this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit WBKC or Wolverine Bank to 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 (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of WBKC’s shareholders to approve the Merger, the WBKC Board of Directors may, in response to a Superior Proposal, and (z) effect an Adverse Recommendation Change, provided, that the Company’s WBKC Board of Directors determines in good faith, after consultation with its outside legal counselcounsel and financial advisor, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is do so would be reasonably likely to be inconsistent result in a breach of its fiduciary duties to the shareholders of WBKC under applicable Law, and provided, further, that the WBKC Board of Directors may not effect such an Adverse Recommendation Change unless (A) the WBKC Board shall have first provided prior written notice to Horizon (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five (5) business day period), and (B) Horizon does not make, within five (5) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the WBKC Board of Directors (after consultation with outside legal counsel and WBKC’s financial advisor), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required in order to comply with the Company WBKC Board’s fiduciary duties to the shareholders of WBKC under applicable Law; except that . WBKC agrees that, during the five (15) the Company business day period prior to its effecting an Adverse Recommendation Change, WBKC and its officers, directors, and representatives shall not deliver negotiate in good faith with Horizon and its officers, directors, and representatives regarding any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable revisions to the Company than those contained terms of the transactions contemplated by this Agreement proposed by Horizon.
(d) In addition to the obligations of WBKC set forth in the Confidentiality Agreement paragraphs (a), (b), and (c) of this Section 5.06, WBKC shall as promptly as possible, and in any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and event within two (2) subject business days after WBKC first obtains knowledge of the receipt thereof, advise Horizon orally and in writing of (i) any Acquisition Proposal or any request for information that WBKC reasonably believes could lead to applicable Lawor contemplates an Acquisition Proposal, or (ii) any inquiry WBKC reasonably believes could lead to any Acquisition Proposal, the Company shall make available terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions), and the Parent identity of the Person making any non-public information concerning any Company Entity that is made available to any other Person such Acquisition Proposal or group in request, or inquiry. In connection with any actual such Acquisition Proposal, request, or potential Acquisition Proposal that was not inquiry, if there occurs or is presented to WBKC any offer, material change, modification, or development to a previously made available to the Parentoffer, contemporaneously with the delivery letter of such information to intent, or any other material development, WBKC (or its outside counsel) shall (A) advise and confer with Horizon (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto, and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry, and (B) promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company upon receipt or the Company’s Board from taking delivery thereof, provide Horizon with true, correct, and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 complete copies of any document or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)communication related thereto.
(be) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee For purposes of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any “Acquisition Proposal (any action described in the immediately foregoing clauses Proposal” shall mean (i) any inquiry, proposal, or offer from any Person or group of Persons (ii), an “Adverse Recommendation Change”).
(cother than as contemplated by this Agreement) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not relating to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to to, any Acquisition Proposal direct or indirect acquisition or purchase, in one transaction or a series of transactions, of (other than an Acceptable Confidentiality Agreement in circumstances contemplated in A) assets or businesses that constitute 25% or more of the penultimate sentence revenues, net income, or assets of Section 6.2(a))WBKC and its Subsidiaries, taken as a whole, or (B) 25% or more of any class of equity securities of WBKC or any of its Subsidiaries; (ii) requiring the Company to abandonany tender offer or exchange offer that, terminateif consummated, would result in any Person beneficially owning 25% or more of any class of equity securities of WBKC or any of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, or fail similar transaction involving WBKC, Wolverine Bank, or any of its other Subsidiaries pursuant to consummate which any Person or the shareholders of any Person would own 25% or more of any class of equity securities of WBKC, Wolverine Bank, or any of WBKC’s other Subsidiaries or of any resulting parent company of WBKC or Wolverine Bank; or (iv) any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent, or materially delay the Merger or any that could reasonably be expected to dilute materially the benefits to Horizon of the Transactions.
(d) Notwithstanding transactions contemplated hereby, other than the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions transactions contemplated hereby. For purposes of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice5.06, a “Notice of Acquisition Proposal”), it being understood that Person” shall include a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any natural Person, or any inquirylegal, discussionscommercial, or negotiations with respect to any Acquisition ProposalGovernmental Authority, and the material terms of such requestincluding, Acquisition Proposala corporation, inquirygeneral partnership, discussionsjoint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is acting in a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentrepresentative capacity.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Wolverine Bancorp, Inc.), Merger Agreement (Horizon Bancorp /In/)
Acquisition Proposals. (a) Except as provided in Subject to the other provisions of this Section 6.2(a) and in Section 6.2(d)6.5, during the Interim Period, the Company shall not (not, and shall cause each of the Company Subsidiaries, and its and their officers and directors, managers or equivalent not to, and shall use its reasonable best efforts to cause any other Representatives of the Company or the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, directly or indirectly through another Person, (i) directly or indirectly solicit, initiate, solicitknowingly encourage or knowingly facilitate any inquiry, knowingly encouragediscussion, offer or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal request that constitutes, or would could reasonably be expected to lead to, a Company Acquisition Proposal (an Acquisition Proposal“Inquiry”), or (ii) participate or engage in any discussions or negotiations withregarding, or furnish to any Third Party any non-public information in connection with, or data relating to otherwise cooperate in any way with, or knowingly facilitate in any way any effort by, any Third Party in connection with, any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Inquiry, (iii) approve or recommend a Company Acquisition Proposal. , or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5(b)) providing for or relating to a Company Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the immediately foregoing sentencecontrary in this Section 6.5, at any time prior to obtaining the requisite Company Required VoteStockholder Approval, the Company and may, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party made after the Company’s Board are permitted to take any actions described in clause (ii) date of this Section 6.2(a) with respect to a third party if Agreement (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a6.5) (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or simultaneously with providing it to such Third Party), whether by any and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Entity or any Representative Acquisition Proposal if, in the case of each of clauses (as if all Company Entities i) and Representatives were bound by this Section 6.2(a))), (ii): (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith faith, after consultation with its financial and legal advisors, that such proposal Company Acquisition Proposal constitutes, or is could reasonably likely be expected to lead to, a Superior Proposal, and (zy) the Company’s Company Board determines in good faith, after consultation with legal counsel, that failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law.
(c) The Company shall notify Parent promptly (and in any event within twenty-four (24) hours) after receipt of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal. Such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal or Inquiry and all of the material terms and conditions of any Company Acquisition Proposal or Inquiries. The Company shall also promptly notify Parent if it enters into discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any person in accordance with this Section 6.5(c) and keep the other party informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal within five (5) business days of the request of Parent and reaffirm the Company Recommendation within five (5) business days (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), a “Company Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board shall be permitted to (x) terminate this Agreement to enter into a definitive agreement, including an Alternative Acquisition Agreement, with respect to a Superior Proposal, subject to compliance with Section 6.5(f) and Section 8.3, if the Company Board (A) has received a Company Acquisition Proposal that, in the good faith determination of the Company Board, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Parent and Merger Sub pursuant to, Section 6.5(f), and (B) determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, or (y) effect a Company Adverse Recommendation Change in response to a Company Intervening Event if the Company Board determines in good faith, after consultation with its outside financial and legal counseladvisors, that the failure to participate in take such negotiations or discussions or to furnish such information or data to such third party is likely to action would be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(be) Except as provided in permitted by this Section 6.2(d) and in Section 6.2(g6.5(e), each of neither the Company, the Company’s Board, and each Company Parent Board Committee nor any committee thereof shall not (i) withdraw withhold, withdraw, qualify or withhold modify (or amend publicly propose to withhold, withdraw, qualify or modify modify), in a manner adverse to any Buyer Entity)the Company or the Parent Recommendation, or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommendfail to include the Parent Recommendation in the Circular or any Schedule 14D-9, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal as applicable (any action of the actions described in the immediately foregoing clauses (i) or (ii), an a “Parent Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), . Notwithstanding anything to the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing contrary set forth in this Section 6.2Agreement, at any time prior to obtaining the Company Required VoteParent Shareholder Approval, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 6.5(g) and Section 6.4(a), with respect to an Acquisition Proposal8.3, the Company’s Parent Board is shall be permitted to make an effect a Parent Adverse Recommendation Change if (i) if, after the date of this Agreement a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity Parent Intervening Event has occurred or any Representative (as if all Company Entities arisen and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Parent Board determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law.
(f) The Company Board shall not be entitled to terminate this Agreement or effect a Company Adverse Recommendation Change as permitted under Section 6.5(d) in circumstances involving or relating to a Company Acquisition Proposal unless (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that is the basis of such action (it being understood that such material terms need not include the identity of the Third Party), (ii) during the five (5) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal, and (iii) following the end of the five (5) Business Day period, the Company Board shall have determined in good faith, after consultation with its financial and legal advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(g) Other than in connection with a Company Acquisition Proposal (which shall be subject to Section 6.5(f) and shall not be subject to this Section 6.5(g)), nothing in this Agreement shall prohibit or restrict the Company Board from making a Company Adverse Recommendation in response to a Company Intervening Event to the extent that (i) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to make such an effect a Company Adverse Recommendation Change is likely to would be inconsistent with the Company Board’s its fiduciary duties under applicable Law, and (ivii) subject (A) the Company provides Parent five (5) Business Days written notice of its intention to compliance with applicable Lawtake such action, which notice shall specify the reasons therefor, (B) after providing such notice and prior to making such Company Adverse Recommendation Change, the Company provides shall negotiate in good faith with Parent during such five (5) Business Day period (to the extent that Parent three Business Days’ prior written notice of the Company’s intention desires to negotiate) to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal this Agreement as set forth in the Notice of Acquisition Proposal as provided to the Parent), then would not permit the Company must provide Board to the Parent make a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject Change pursuant to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposalthis Section 6.5(g), and (vC) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination shall have considered in good faith any changes to this Agreement offered in writing by Parent, and following such five (5) Business Day period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof advisors, that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject would continue to compliance with applicable Law, the require a Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment Company Intervening Event.
(h) Nothing contained in this Section 6.5 or modification elsewhere in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from disclosing to the terms hereof andCompany’s stockholders a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act; provided, upon implementation however, that any disclosure other than a “stop, look and listen” or similar communication of such adjustment the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or modification, an express reaffirmation of the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation to the Company’s stockholders in favor of the Merger shall be deemed to be an Company Adverse Recommendation Change.
(i) The Company shall, and shall cause each of the Company Subsidiaries and its and their officers and directors, managers or equivalent, and shall use its reasonable best efforts to cause any other Representatives of the Company or the Company Subsidiaries to immediately cease any existing discussions, negotiations or communications (including discontinuing access to the Data Site) with any Person conducted heretofore with respect to any Company Acquisition Proposal. The Company shall, within ten (10) Business Days of the date hereof, request that, and use all commercially reasonable efforts to cause, all Third Parties who have been furnished confidential information regarding the Company in connection with the solicitation of or discussions regarding a Company Acquisition Proposal within the twelve (12) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that the Company is entitled to have such information returned or destroyed).
(j) For purposes of this Agreement, as so adjusted or modified).:
Appears in 2 contracts
Sources: Merger Agreement (Westport Innovations Inc), Merger Agreement (Fuel Systems Solutions, Inc.)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, agrees that (i) it and its officers and directors shall not, and (ii) it shall use reasonable best efforts to ensure that its representatives shall not, in each case (A) directly or indirectly indirectly, initiate, solicit, solicit or knowingly encourage, encourage or facilitate (any inquiries or the making of any proposal or offer with respect to the acquisition, including by way of furnishing non-public informationa tender offer, exchange offer, merger, consolidation or other business combination, of (x) an equity interest representing a 15% or greater economic or voting interest in the Company, or (y) the assets, securities or other ownership interests of or in the Company representing 15% or more of the consolidated assets of the Company, other than the transactions contemplated by this Agreement (any inquiries with respect such proposal or offer being hereinafter referred to as an ("Acquisition Proposal"), or (B) directly or indirectly, engage in any negotiations concerning, or provide access to its properties, books and records or any confidential information or data to, any Person (including, without limitation, Bio-Imaging Technologies, Inc. and any of its affiliates or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead advisors) relating to, an Acquisition Proposal; provided, or (ii) participate or engage in discussions or negotiations withhowever, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Voteacceptance for payment of Shares pursuant to the Offer, the Company and the Company’s Board are permitted its representatives may, in response to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (that the Board of Directors of the Company determines, in good faith, after consultation with its financial advisors, constitutes a Superior Proposal, and such which Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))6.6(a), (x) provide access or furnish information with respect to the Company gives to the Parent the notice required by Section 6.2(e), Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) after receiving the advice of its financial advisors, the Company’s Board determines engage in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent negotiations with the Company Board’s fiduciary duties under applicable LawPerson making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; except that (1) provided further, however, that, subject to the right of the Company shall not deliver to withhold information where such disclosure would contravene any non-public information to such third party without first entering Law or binding agreement entered into a confidentiality agreement with such third party on terms no less favorable prior to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality date of this Agreement”) and (2) subject to applicable Law, the Company shall make available promptly provide to the Parent any non-public information concerning any Company Entity that is made available provided to any other the Person or group in connection with any actual or potential making such Acquisition Proposal or its representatives that was not previously made available provided to the Parent, contemporaneously with the delivery of such information to (Parent or as promptly as practicable after such information is delivered to) such PersonMerger Sub. Nothing contained in this Section 6.2 will prohibit the The Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Boardwill, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (will cause its agents and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not representatives to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, promptly cease and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely cause to be inconsistent with the Company Board’s fiduciary duties under applicable Lawterminated any existing activities, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and . The Company shall also promptly (iiwithin two (2) promptly provide to Business Days) notify Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with receipt of any Acquisition Proposal (orafter the date hereof, at the Company’s election, a copy thereof) and which notice shall include the identity of the Person or group making any such requestAcquisition Proposal and the material terms and conditions thereof, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall and will keep the Parent reasonably informed of the status apprised of any Acquisition Proposals (including disclosing to the Parent the identity of the partiesrelated material developments, the price involved, discussions and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentnegotiations related thereto.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Etrials Worldwide Inc.)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such will cause its Subsidiaries and use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or facilitate (including by way iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal, except to notify a person that has made or, to the knowledge of furnishing non-public information) the Company, is making any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead tois considering making, an Acquisition Proposal, or (ii) participate or engage of the existence of the provisions of this Section 6.12(a); provided, that, prior to the adoption of this Agreement by the stockholders of the Company by the Requisite Company Vote, in discussions or negotiations withthe event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish any non-public or cause to be furnished nonpublic information or data relating to any Company Entity and participate in such negotiations or any Company Asset to, or provide access discussions to the properties, books or records extent that its Board of any Company Entity to, any Person that has made an Acquisition Proposal or Directors concludes in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause good faith (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposaloutside counsel, and (zwith respect to financial matters, its financial advisor) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate take such actions would be more likely than not to result in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s a violation of its fiduciary duties under applicable Lawlaw; except that (1) provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such Agreement, which confidentiality agreement with shall not provide such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection person with any actual or potential Acquisition Proposal that was not previously made available exclusive right to the Parent, contemporaneously negotiate with the delivery Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position Agreement with any person other than Parent with respect to an any Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(aProposal. The Company will promptly (within twenty-four (24) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(bhours) Except as provided in Section 6.2(d) and in Section 6.2(g), each advise Parent following receipt of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that inquiry which could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy substance thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (New York Community Bancorp Inc), Merger Agreement (Astoria Financial Corp)
Acquisition Proposals. (a) Except From the date hereof until the termination hereof and except as provided expressly permitted by the following provisions of this Section 7.3, the Company will not, nor will it permit any of its subsidiaries to, nor will it authorize or direct any officer, director, or employee of or any investment banker, attorney, accountant, or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate, or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing contained in this Section 6.2(a7.3(a) shall prohibit the Company Board from furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Company Board, after consultation with independent legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable Law, (B) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory, and other aspects of the proposal and the person making the proposal, and believes in good faith, after consolation with its Financial Advisor, that such Acquisition Proposal would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Offer and the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (C) prior to taking such action, the Company (x) provides reasonable notice to 41 49 Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in Section 6.2(d)any event containing terms at least as stringent as those contained in the Confidentiality Agreement between Parent and the Company. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall not notify Parent of any Acquisition Proposal (including, the material terms and shall cause conditions thereof and the Company Subsidiaries to not)identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall take such reasonable actions to cause (provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall cause thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, agents, and other agents and representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and shall notify each party that it, or any officer, director, investment advisor, financial advisor, attorney, or other agent or representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board no longer seeks the making of any Acquisition Proposal. The Company shall (i) take the all necessary steps to promptly inform the Representatives involved individuals or entities referred to in the Transactions first sentence of this Section 7.3(a) of the obligations undertaken in this Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf7.3(a).
(gb) Nothing The Company Board will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement will prohibit Agreement, the Offer, or restrict the Company’s Merger unless the Company Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances after consultation with respect to the Parent Business occurring or arising after the Signing Dateindependent legal counsel, if (i) the Company’s Board determines in good faith that such action is necessary for the Company Board to comply with the fiduciary duties to the Company's stockholders under applicable Law; provided, however, that the Company Board may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement, the Offer, or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first complied with its obligations set forth in Section 9.1(d)(i)) and unless it shall have first consulted with independent legal counsel, and have determined that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders. Nothing contained in this Section 7.3(b) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders which, in the good faith reasonable judgment of the Company Board, after consultation with its outside independent legal counsel that not making such Adverse Recommendation Change counsel, is likely to be inconsistent with the Company Board’s fiduciary duties required under applicable Law (ii) subject to compliance with applicable Law; provided, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change however, that except as otherwise permitted in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (iithis Section 7.3(b), the Company Board again makes the determination does not withdraw or modify, or propose to withdraw or modify, its position in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification respect of the terms hereof that Offer or the Parent proposes in writing) that failure Merger, or approve or recommend, or propose to make such approve or recommend, an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable LawAcquisition Proposal. If the Parent proposes Notwithstanding any other provision of this Agreement to the Company contrary, any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of action by the Company Board that it make an Adverse Recommendation Changepermitted by, then the Company and Parent shall negotiate taken in good faith (during a period not exceeding three Business daysaccordance with, unless otherwise mutually agreedthis Section 7.3(b) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor constitute a breach of this Agreement by the Merger and this Agreement, as so adjusted or modified).42 50
Appears in 2 contracts
Sources: Merger Agreement (Texas Instruments Inc), Merger Agreement (Texas Instruments Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to will cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) Affiliates not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or the making engage in any negotiations concerning, or submission ofprovide any confidential information to, or have any discussions with, any proposal that constitutes, or would reasonably be expected to lead person relating to, an any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) participate providing (or engage authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that person who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.2(a6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))only to the extent that, (x) in the Company gives the Parent the notice required by Section 6.2(ecase of actions referred to in clause (ii), (y) after receiving the advice of its financial advisors, the Company’s 's Board of Directors determines in good faith that such proposal constitutesAcquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the case of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company's Board of Directors, after having consulted with and considered the advice of outside counsel to such Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation, is reasonably likely required in order to lead todischarge the directors' fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a third party on terms which the Company's Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving Parent at least five Business Days to respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and (z) the Company’s Board determines in good faiththen taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable negotiations conducted prior to the Company than those contained in the Confidentiality date of this Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change parties other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a)Parent, with respect to an any of the foregoing. The Company shall promptly (within 24 hours) advise Parent following the receipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the person making such Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by and advise Parent of any Company Entity or developments (including any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))change in such terms) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to promptly upon the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)occurrence thereof.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Ubs Preferred Funding Co LLC I), Agreement and Plan of Merger (Ubs Ag)
Acquisition Proposals. (a) The Company shall immediately cease, and the Company shall cause its Subsidiaries and each of their respective representatives to immediately cease, any discussions or negotiations with any Person conducted prior to the date of this Agreement with respect to an Acquisition Proposal. Except as provided in permitted by this Section 6.2(a) and in Section 6.2(d)5.1, the Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such reasonable actions to will cause (its Subsidiaries and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, its and their directors, investment bankers, attorneys, accountants, financial advisors, agents, executive officers and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage, initiate or facilitate (including by way of furnishing non-public information) encourage any inquiries inquiry with respect to, or the making or submission of, any proposal that constitutes, constitutes or would could reasonably be expected to lead to, to an Acquisition Proposal, or (ii) participate or engage in discussions or any negotiations regarding an Acquisition Proposal with, or furnish any non-public nonpublic information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity an Acquisition Proposal to, any Person that has made or, to the Knowledge of the Company, is considering making an Acquisition Proposal, or (iii) engage in discussions regarding an Acquisition Proposal or in contemplation with any Person that has made, or, to the Knowledge of the Company, is considering making, an Acquisition Proposal. , except to notify such Person of the existence of the provisions of this Section 5.1.
(b) Notwithstanding the immediately foregoing sentenceSection 5.1(a), at any time if, prior to obtaining the time the Requisite Company Required VoteStockholder Approval is obtained, the Company receives a written and unsolicited Acquisition Proposal that the Company’s Board are permitted to take any actions described in clause (ii) board of this Section 6.2(a) with respect to a third party if (w) directors of the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, (after consultation with its financial advisors and outside counsel) constitutes or is reasonably likely to lead to, to a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that may take the following actions: (1) furnish nonpublic information with respect to the Company shall not deliver any non-public information and its Subsidiaries to the Person making such third party without first entering Acquisition Proposal, but only if (A) prior to so furnishing such information, the Company has entered into a customary confidentiality agreement with such third party Person on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement by and between the Company and Purchaser dated as of November 2, 2018, and (B) all such information has previously been made available to Purchaser or is provided to Purchaser prior to or contemporaneously with the time it is provided to the Person making such third party, an “Acceptable Confidentiality Agreement”) Acquisition Proposal or such Person’s representatives; and (2) subject to applicable Law, the Company shall make available engage or participate in any discussions or negotiations with such Person with respect to the Parent Acquisition Proposal. The Company promptly (and in any non-public information concerning event within 48 hours) shall advise Purchaser orally and in writing of the receipt of (i) any Company Entity Acquisition Proposal and any inquiry that is made available reasonably likely to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect lead to an Acquisition Proposal pursuant to Rule 14d-9 and the material terms of such proposal or 14e-2(ainquiry (including the identity of the party making such proposal or inquiry and, if applicable, copies of any documents or correspondence evidencing such proposal), and (ii) promulgated under the Exchange Act or from making any similar disclosure, in either case request for information relating to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change or any of its Subsidiaries other than requests for information not reasonably likely to be related to an Acquisition Proposal. The Company shall keep Purchaser informed on a reasonably current basis (and in accordance with Section 6.2(dany event at least once every two (2) Business Days) of the status of any such Acquisition Proposal (including any material change to its terms).
(bc) Except as provided set forth in Section 6.2(d) and in Section 6.2(g5.1(d), each the board of directors of the Company, the Company’s Board, and each Company Board Committee shall not (i) withhold, withdraw, or modify (or publicly propose to withhold, withdraw or withhold (or amend or modify modify), in a manner adverse to any Buyer Entity)Purchaser, its recommendation referred to in Section 5.8, or (ii) approve or recommend (or publicly propose to withdraw approve or withhold (or amend or modify recommend) any Acquisition Proposal. Except as set forth in a manner adverse to any Buyer EntitySection 5.1(d), Company shall not, and its board of directors shall not allow the approvalCompany to, recommendation, or declaration and the Company shall not allow any of advisability by the Company’s Board Subsidiaries to, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (except for confidentiality agreements permitted under Section 5.1(b)) relating to any Company Board Committee of Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the Mergerboard of directors of the Company may, prior to the time the Requisite Company Stockholder Approval is obtained, in response to a Superior Proposal which did not result from a breach of Section 5.1(a) or any Transactions(b), (i) make a Change in Recommendation and/or (ii) recommendterminate this Agreement pursuant to Section 7.1 (and concurrently with such termination cause Company to enter into a definitive agreement with respect to the Superior Proposal), adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing each case of clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), if the board of directors of the Company shall not (and shall cause has determined in good faith, after consulting with its outside counsel, that the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries failure to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could such action would reasonably be expected to lead to be inconsistent with the directors’ fiduciary duties under applicable law; provided that the board of directors may not take any such action in connection with an Acquisition Proposal unless (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii1) the Company’s Board determines in good faith after consultation with its legal and financial advisors board of directors has determined that such Acquisition Proposal constitutes a Superior Proposal, (iii2) prior to terminating this Agreement pursuant to Section 7.1(f), the Company provides prior written notice to Purchaser at least four (4) Business Days in advance (the “Notice Period”) of its intention to take such action, which notice shall specify all material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal and copies of any documents or correspondence evidencing such Superior Proposal), (3) during the Notice Period, Company shall, and shall cause its financial advisors and outside counsel to, negotiate with Purchaser in good faith should Purchaser propose to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the good faith judgment of the Company’s Board determines board of directors) a Superior Proposal and (4) such Superior Proposal continues to constitute (in the good faithfaith judgment of the Company’s board of directors) a Superior Proposal after taking into account any such amendments that Purchaser shall have agreed to make prior to the end of the Notice Period. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new notice to Purchaser and again comply with the requirements of this Section 5.1(d), except that the Notice Period shall be reduced to two (2) Business Days.
(e) Nothing contained in this Section 5.1 shall prohibit Company from (i) complying with its disclosure obligations under U.S. federal or state law with regard to an Acquisition Proposal, including Rules 14a-9, 14d-9 or 14e-2 promulgated under the Exchange Act, or, (ii) making any disclosure to the Company’s stockholders if, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties determines that such disclosure would be required under applicable Lawlaw; provided, (iv) subject to compliance with applicable Lawhowever, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or disclosure relating to an Acquisition Proposal shall be deemed to be a Change in response Recommendation unless it is limited to a material adverse development stop, look, and listen communication or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines board of directors reaffirms the recommendation referred to in good faith after consultation with its outside legal counsel Section 5.8 in such disclosure and does not recommend that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development stockholders tender their shares, or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end informing any Person of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification existence of the terms hereof that the Parent proposes provisions contained in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Section 5.1.
Appears in 2 contracts
Sources: Merger Agreement (SI Financial Group, Inc.), Merger Agreement (Berkshire Hills Bancorp Inc)
Acquisition Proposals. (a) Except as provided in Section 5.7.1 From and after the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 6.2(a) and in Section 6.2(d)7.1 or the Effective Time, the Company agrees that it shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the not authorize or permit any Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not Representative to, (i) directly or indirectly initiateindirectly, take any action to (A) solicit, initiate or knowingly encourage, facilitate or facilitate (including by way of furnishing non-public information) take any inquiries with respect action intended to, or the making or submission of, any proposal that constitutes, or which would be reasonably be expected to lead to, an facilitate any Acquisition Proposal, or (iiB) participate or engage in any way in discussions or negotiations with, or furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person person that has made an Acquisition Proposal Proposal, (C) except as expressly permitted by this Agreement, withdraw or modify the Company Recommendation in contemplation of an a manner adverse to Parent, (D) other than the Transactions, approve or recommend any Acquisition Proposal, (E) enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement with a party to whom the Company is permitted to provide information in accordance with Section 5.7.2), or (F) resolve or agree to do any of the foregoing actions (any action or failure to act set forth in the foregoing clauses (C), (D), or (F) (to the extent related to the foregoing clauses (C) or (D)), a “Company Change in Recommendation”). The Company shall immediately cease and cause to be terminated all existing negotiations and discussions pending as of the date hereof with respect to any Acquisition Proposal.
Section 5.7.2 Notwithstanding the immediately foregoing sentenceprovisions of Section 5.7.1 or any other provision of this Agreement, at any time prior to obtaining the Company Required VoteStockholder Approval, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written an unsolicited Acquisition Proposal from such third party (and such Acquisition Proposal any person which did not result arise from or in connection with a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))5.7, (xA) the Company gives and its Representatives may contact such person to clarify the Parent terms and conditions of such proposal, and (B) if the notice required by Section 6.2(e)Company Board determines, (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith (1) after consultation with its independent financial advisor and outside legal counsel, that such proposal constitutes, Acquisition Proposal is or is could reasonably likely be expected to lead to, to a Superior Proposal, and (z2) the Company’s Board determines in good faith, after consultation with its outside legal counsel, counsel that the failure to participate in take such negotiations or discussions or to furnish such information or data to such third party is likely action could reasonably be expected to be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law; except that (1) , then the Company shall not deliver any and its Representatives may furnish non-public information to, and engage in discussions and negotiations with, the person making such Acquisition Proposal and its Representatives; provided that (x) prior to furnishing such third party without non-public information to, or engaging in such discussions or negotiations with, such person or its Representatives, the Company shall first entering enter into a confidentiality agreement with such third party on terms person that contains confidentiality undertakings no less favorable to the Company than those contained in the Confidentiality Agreement (but that shall not contain any “standstill” period or prohibit the disclosure of the terms of such confidentiality agreement Acquisition Proposal to Parent or otherwise prohibit the Company from complying with such third partythis Section 5.7, an “Acceptable Confidentiality Agreement”) and (2y) subject to applicable Law, the Company shall make available will promptly (and in any event within forty-eight (48) hours) provide to the Parent Merger Sub any non-public information concerning any the Company Entity that is made available provided to any other Person such person or group in connection with any actual or potential Acquisition Proposal its Representatives that was not previously made available provided to Parent. The Company shall promptly (and in any event within forty-eight (48) hours) notify Merger Sub if the Company or any Company Representative receives an Acquisition Proposal. The written notice shall include the identity of the person making the Acquisition Proposal and a copy of such Acquisition Proposal (or, if not in writing, a description of the material terms and conditions of such Acquisition Proposal). The Company shall keep Parent reasonably informed on a substantially current basis (and in any event no later than forty-eight (48) hours after the occurrence of any material developments) of material developments with respect to any Acquisition Proposal (including the material terms and conditions thereof and of any material modifications thereto). Without limiting the foregoing, the Company shall promptly (and in any event within forty-eight (48) hours) notify Merger Sub if it determines to begin providing such non-public information or engaging in any such discussions or negotiations with respect to an Acquisition Proposal pursuant hereto.
Section 5.7.3 Notwithstanding the provisions of Section 5.7.1 or any other provision of this Agreement, at any time prior to the time of the Company Stockholder Approval, if the Company receives an unsolicited Acquisition Proposal, which did not arise from or in connection with a breach of this Section 5.7, that the Company Board determines, in good faith and after consultation with its independent financial advisor and outside legal counsel, constitutes a Superior Proposal (after giving effect to any adjustments to the terms of this Agreement which may be offered by Parent), the Company Board may effect a Company Change in Recommendation with respect to such Superior Proposal or terminate this Agreement pursuant to Section 7.1.7 and enter into a definitive agreement with respect to such Superior Proposal; provided, that the Company Board may not effect a Company Change in Recommendation or terminate this Agreement pursuant to Section 7.1.7 unless: (A) the Company shall have provided prior written notice (a “Change Notice”) to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which Change Notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the person making such Superior Proposal), and shall have contemporaneously provided a copy of any proposed definitive agreement(s) with respect to such Superior Proposal and (B) during the Notice Period the Company shall have negotiated in good faith with Parent to amend this Agreement or to enter into another transaction with Parent such that the offer that was determined to constitute a Superior Offer no longer constitutes a Superior Offer. In the event of any material revisions to the terms of such Acquisition Proposal after the start of the Notice Period, the Company shall be required to deliver a new written Change Notice to Parent and to comply with the delivery requirements of this Section 5.7.3 with respect to such new written Change Notice, and the Notice Period shall be deemed to have re-commenced on the date of such information new Change Notice, except that the Notice Period shall be reduced to two (2) Business Days.
Section 5.7.4 Notwithstanding the provisions of Section 5.7.1 or any other provision of this Agreement, in circumstances other than as promptly provided in Section 5.7.3, at any time prior to the time of the Company Stockholder Approval, the Company Board may effect a Company Change in Recommendation if the Company Board determines in good faith, after consultation with outside counsel (who shall have consulted in good faith with Parent’s outside counsel), that as practicable a result of facts or circumstances arising after such information is delivered to) such Person. the date of this Agreement, failure to do so would be inconsistent with the Company Board’s fiduciary obligations under applicable Law.
Section 5.7.5 Nothing contained in this Section 6.2 will 5.7 shall prohibit the Company or the Company’s Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal a tender offer or exchange offer by a third party pursuant to Rule Rules 14d-9 or and 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders), or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject disclosure to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change stockholders if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change disclosure is likely to be inconsistent with the Company Board’s fiduciary duties required under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a or from making any “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions stop-look-and-listen” communication to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination stockholders of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent pursuant to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereofRule 14d-9(f) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals Exchange Act (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof similar communication to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modifiedstockholders).
Appears in 2 contracts
Sources: Merger Agreement (Pernix Therapeutics Holdings, Inc.), Merger Agreement (Somaxon Pharmaceuticals, Inc.)
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 the earlier of (x) August 8, 2008, and (y) the date that is five days prior to the Mailing Date, the Company and its subsidiaries and their respective officers, directors, employees, consultants, agents, advisors, affiliates and other representatives (“Representatives”) shall have the right to, directly or indirectly, (i) initiate, solicit and encourage Acquisition Proposals (as hereinafter defined), including by way of providing access to non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (as hereinafter defined); provided that the Company shall promptly provide to Parent any information concerning the Company or its subsidiaries that is provided to any person given such access that was not previously provided to Parent, and (ii) enter into and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with, assist, participate in or facilitate any such inquiries, proposals, discussions or negotiations; provided, however, that the Company shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal after the date hereof, which notice shall include the identity of the person making such Acquisition Proposal and set forth in reasonable detail its material terms and conditions (including information relating to the financing thereof), and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal and provide a copy of all written materials provided to or by the Company in connection with such Acquisition Proposal.
(b) Except as provided in this Section 6.2(a7.4, from (x) and in Section 6.2(d)the earlier of (1) August 8, the Company shall not (and shall cause the Company Subsidiaries to not)2008, and shall take such reasonable actions (2) the date that is five days prior to cause the Mailing Date until (y) the earlier of (1) the Effective Time and shall cause (2) the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officerstermination of this Agreement in accordance with Article IX, directorsnone of the Company, investment bankersits subsidiaries nor any of their respective Representatives shall, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, solicit or knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, (including by way of providing information) the submission of any inquiries, proposals or the making offers or submission of, any proposal other efforts or attempts that constitutesconstitute, or would may reasonably be expected to lead to, a tender offer or exchange offer, proposal for a merger, consolidation or other business combination involving the Company and its subsidiaries or any proposal or offer to acquire in any manner an equity interest representing a 20% or greater economic or voting interest in the Company, or the assets, securities or other ownership interests of or in the Company or any of its subsidiaries representing 20% or more of the consolidated assets of the Company and its subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer, an “Acquisition Proposal”) or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations, (ii) participate approve or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset torecommend, or provide access publicly propose to the propertiesapprove or recommend, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or enter into any merger agreement, letter of intent, agreement in contemplation of principle, share-purchase agreement, asset-purchase agreement or share-exchange agreement, option agreement or other similar agreement providing for, or relating to, an Acquisition Proposal or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iii) take any action to exempt any person from the restrictions on “business combinations” contained in the Maryland Business Combination Act or otherwise cause such restrictions not to apply, (iv) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates or (v) propose or agree to do any of the foregoing. Except as provided in this Section 7.4, on the date that is the earlier of (1) August 8, 2008, and (2) the date that is five days prior to the Mailing Date, the Company shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any persons conducted theretofore by the Company, its subsidiaries or any Representatives with respect to any Acquisition Proposal. Notwithstanding the immediately foregoing sentence.
(c) If, at any time following the date of this Agreement and prior to obtaining the Company Required Vote, the Company and adoption of this Agreement by the Company’s Board are permitted to take any actions described stockholders in clause accordance with this Agreement, (ii) of this Section 6.2(a) with respect to a third party if (wx) the Company has received a written Acquisition Proposal from such a third party that (1) the board of directors of the Company believes in good faith to be bona fide and such Acquisition Proposal (2) did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e7.4(b), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board board of directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity)constitutes, or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a))result in, or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, Proposal and (iiiz) the Company’s Board determines in good faith, after consultation with its outside legal counsel, the board of directors of the Company determines in good faith that the failure to make take such an Adverse Recommendation Change is likely action could reasonably be expected to be inconsistent with the Company Board’s violate its fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, then the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal may (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the i) furnish information with respect to the Company and its subsidiaries to the person making such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) The Company and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its officers, directors, investment bankersemployees, attorneys, accountants, financial advisors, agents, representatives and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the agents shall immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition ProposalProposal (as defined in Section 6.2(b) hereof). The Company shall (i) take the necessary steps and its Subsidiaries will not, and will use their best efforts to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) cause their respective officers, directors, employees and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring investment bankers, attorneys, accountants or other agents retained by the Company or any portion thereof of its Subsidiaries not to, (i) initiate or solicit, directly or indirectly, any inquiries with respect to, or the making of, any Acquisition Proposal, or (ii) except as permitted below, engage in negotiations or discussions with, or furnish any information or data to return or destroy any Third Party (and certify such destruction as defined in writing by an executive officer of such PersonSection 8.3(b) all confidential information heretofore furnished to such Person by or on its behalf.
(ghereof) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect (other than the transactions contemplated hereby and by the Ancillary Agreements). Notwithstanding anything to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines contrary contained in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Lawthis Section 6.2, the Company provides may furnish information to, and participate in discussions or negotiations (including, as a part thereof, making any counter- proposal) with, any Third Party which submits an unsolicited written Acquisition Proposal to the Parent three Business Days’ prior Company if the Company's Board of Directors by a majority vote determines in its good faith judgment, based as to legal matters upon the written notice opinion of legal counsel, that the failure to furnish such information or participate in such discussions or negotiations would likely constitute a breach of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s 's fiduciary duties under applicable Law. If ; provided, that nothing herein shall prevent the Parent proposes Board from taking, and disclosing to the Company Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with regard to any adjustment or modification of tender offer; provided further, that the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse Board shall not recommend that the determination shareholders of the Company tender their Shares in connection with any such tender offer unless the Board by a majority vote determines in its good faith judgment, based as to legal matters on the written opinion of legal counsel, that it make an Adverse Recommendation Changefailing to take such action would likely constitute a breach of the Board's fiduciary duty; provided further, then that the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) enter into any agreement with respect to such adjustment any Acquisition Proposal except concurrently with or modification after the termination of this Agreement (except with respect to confidentiality and standstill agreements to the extent expressly provided below). The Company shall promptly provide Parent with a copy of any written Acquisition Proposal received and a written statement with respect to any non-written Acquisition Proposal received, which statement shall include the identity of the parties making the Acquisition Proposal and the terms hereof and, upon implementation thereof. The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal with a Third Party. In no event shall the Company provide non-public information regarding the Retained Business to any Third Party making an Acquisition Proposal unless such party enters into a confidentiality agreement containing provisions designed to reasonably protect the confidentiality of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change 18
(or, if already made, will reinstate its recommendation in favor b) For purposes of the Merger and this Agreement, the term "ACQUISITION PROPOSAL" shall mean any bona fide proposal, whether in writing or otherwise, made by a Third Party to acquire beneficial ownership (as so adjusted defined under Rule 13(d) of the Exchange Act) of all or modifieda material portion of the Assets of, or any material equity interest in, any of the Company, a Retained Subsidiary or the Retained Business pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of Assets, tender offer or exchange offer or similar transaction involving either the Company, a Retained Subsidiary or the Retained Business, including, without limitation, any single or multi-step transaction or series of related transactions which is structured to permit such third party to acquire beneficial ownership of any material portion of the Assets of, or any material portion of the equity interest in, either the Company, a Retained Subsidiary or the Retained Business (other than the transactions contemplated by this Agreement and the Ancillary Agreements); provided, that the term "ACQUISITION PROPOSAL" shall not include any transactions which relate solely to the businesses to be owned by Spinco and the Spinco Companies following the Spin-Off and which could not have an adverse effect on the consummation of the Offer, the Merger, the Spin- Off or the transactions contemplated hereby.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Loral Corp /Ny/), Merger Agreement (Lockheed Martin Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) Company will, and in Section 6.2(dwill cause its Subsidiaries and its and their respective employees, officers and directors to (and will use its reasonable best efforts to cause its and their other Representatives to), immediately cease and cause to be terminated any activities, discussions, or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal.
(b) Company shall not (not, and shall cause the Company its Subsidiaries to not)and its and their respective employees, officers and directors not to, and shall take such use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and their other representatives (collectively, the “Representatives”) Representatives not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or facilitate have or participate in any discussions with, any person relating to any Acquisition Proposal (including by way except (A) to notify a person that has made or, to the knowledge of furnishing non-public information) such party, is making any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead tois considering making, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to of the properties, books or records existence of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) provisions of this Section 6.2(a6.9 or (B) with respect to a third party if clarify the terms and conditions of any Acquisition Proposal) or (wiv) the Company unless this Agreement has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than been terminated in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g)its terms, each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute approve or enter into any Contract (including any merger agreementterm sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheetcommitment, memorandum of understanding, or agreement in principle, acquisition agreement, merger agreement or other similar agreement (iwhether written or oral, binding or nonbinding) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in circumstances contemplated accordance with this Section 6.9) in connection with or relating to any Acquisition Proposal (any such agreement, an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, in the penultimate sentence event that after the date of Section 6.2(a)), or (ii) requiring this Agreement and prior to the Company to abandon, terminate, or fail to consummate the Merger or any receipt of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Requisite Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) Company receives a bona fide written Acquisition Proposal (that did not result from or arise in connection with a material breach of this Section 6.2(a6.9(b), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third partymay, and such may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and engage or participate in negotiations or discussions with the person making the Acquisition Proposal is not withdrawn, (ii) if the Board of Directors of Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counselcounsel and its financial advisors, determines in good faith that the failure to make take such an Adverse Recommendation Change is likely to actions would be inconsistent with the Company Board’s its fiduciary duties under applicable Lawlaw; provided, (iv) subject that, prior to compliance furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, Company shall enter into a confidentiality agreement with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of person making such Acquisition Proposal on terms no less favorable to Company than the Confidentiality Agreement (provided that such notice, confidentiality agreement need not contain a standstill) (“Notice of Acquisition ProposalAcceptable Confidentiality Agreement”), it being understood that a Notice which Acceptable Confidentiality Agreement shall not provide such person with any exclusive right to negotiate with Company, and Company shall substantially concurrently provide to Parent any such information which was not previously provided to Parent. Company will promptly (within twenty-four (24) hours) advise Parent following receipt of any Acquisition Proposal does not in itself institute or any inquiry which would reasonably be expected to lead to an Adverse Recommendation Change for purposes hereofAcquisition Proposal and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), which notice must include the information will provide Parent with respect to an unredacted copy of any such Acquisition Proposal that is specified and any draft agreements, proposals or other materials received in Section 6.2(e); except that, if there are connection with any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of inquiry or Acquisition Proposal, and (v) at the end will keep Parent apprised of any material developments, discussions and negotiations related thereto on a reasonably current basis, including any amendments to or revisions of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension material terms of such period required thereunder)inquiry or Acquisition Proposal. Notwithstanding the foregoing, Company shall be permitted to waive any standstill provision to allow any person to make an Acquisition Proposal if the Company Board again makes the determination in good faith of Directors of Company, after consultation with its outside legal counsel and its financial advisors (and taking into account any adjustment or modification of the terms hereof advisors, determines in good faith that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make take such Adverse Recommendation Change is likely to action would be inconsistent with the Company Board’s its fiduciary duties under applicable Law. If law.
(c) As used in this Agreement, “Acquisition Proposal” shall mean, other than the Parent proposes to the Company transactions contemplated by this Agreement, any adjustment offer, proposal or modification inquiry relating to, or any third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the terms hereof in response to a Notice consolidated assets of Acquisition Proposal, Company and such proposed adjustment its Subsidiaries or modification, if implemented, would reverse the determination twenty-five percent (25%) or more of the Company Board that the Acquisition Proposal constituted a Superior ProposalCommon Stock, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent any tender offer (including a detailedself-tender offer) or exchange offer that, written summary of all if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person Common Stock or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Company or its Subsidiaries whose assets, individually or in the end aggregate, constitute twenty-five percent (25%) or more of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification consolidated assets of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Cowen Inc.)
Acquisition Proposals. (a) Except From the date hereof until the termination hereof and except as provided in expressly permitted by the following provisions of this Section 6.2(a) and in Section 6.2(d)6.4, the Company shall not (and shall cause will not, nor will it permit any of its subsidiaries to, nor will it authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company Subsidiaries to not)or any of its subsidiaries to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageinitiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing non-public information) furnish to any inquiries person any information with respect to, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal; provided, however, that nothing contained in this Section 6.4(a) shall prohibit the Company Board from furnishing information to, or (ii) participate or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide written Acquisition Proposal if, or provide access and only to the properties, books or records of any Company Entity to, any Person extent that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (wA) the Company has received a written Acquisition Proposal from such third party (Stockholder Meeting shall not have occurred or shall have occurred and such Acquisition Proposal did the Merger shall not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))have been approved, (xB) the Company gives the Parent the notice required by Section 6.2(e)Board, (y) after receiving consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its financial advisors, fiduciary duties to the Company’s 's stockholders under applicable Law, (C) the Company Board determines in good faith that such proposal constitutesAcquisition Proposal, or if accepted, is reasonably likely to lead tobe consummated taking into account all legal, a Superior Proposalfinancial, regulatory and other aspects of the proposal and the person making the proposal, and (z) the Company’s Board determines believes in good faith, after consultation with its outside legal counsel, that Financial Advisor and after taking into account the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely strategic benefits to be inconsistent with derived from the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into Merger, would, if consummated, result in a confidentiality agreement with such third party on terms no less transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company than (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement (between Parent and the Company. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Lawperson, the Company shall make available to the notify Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii)including, an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d)without limitation, the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) conditions thereof and the identity of the Person person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or group making any such requestamendments or supplements thereto, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company and shall keep the thereafter inform Parent reasonably informed on a prompt basis of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involveddiscussions or negotiations with such a third party, and any material changes to any the terms thereof and providing to the Parent detailed, written summaries conditions of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts promptly give Parent a copy of any information delivered to enforce any such agreement at the request of or on behalf of the person which has not previously been delivered to Parent.
(f) . Immediately after the execution and delivery hereofof this Agreement, the Company shall (will, and shall will cause the Company Subsidiaries its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to) instruct the Representatives to , cease and terminate any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal and shall notify each party that it, or any officer, director, investment advisor, financial advisor, attorney or other representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board no longer seeks the making of any Acquisition Proposal. The Company shall (i) agrees that it will take the necessary steps to promptly inform the Representatives involved individuals or entities referred to in the Transactions first sentence hereof of the obligations undertaken in this Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf6.4(a).
(gb) Nothing The Company Board will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement will prohibit or restrict the Merger unless the Company Board after consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is necessary for the Company Board to comply with the fiduciary duties to the Company’s 's stockholders under applicable Law; provided, however, the Company Board from effecting an Adverse Recommendation Change may not involving approve or relating to recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first complied with its obligations set forth in response Section 8.3(a) and the time period referred to in the last sentence of Section 8.3(a) has expired) and unless it shall have first consulted with independent legal counsel, and have determined, based upon such advice, that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders. Nothing contained in this Section 6.4(b) shall prohibit the Company from taking and disclosing to its stockholders a material adverse development position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or change from making any disclosure to the Company's stockholders which, in circumstances the good faith reasonable judgment of the Company Board, based on the advice of independent legal counsel, is required under applicable Law; provided, that except as otherwise permitted in this Section 6.4(b), the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to the Parent Business occurring Merger or arising after approve or recommend, or propose to approve or recommend, an Acquisition Proposal. Notwithstanding anything contained in this Agreement to the Signing Datecontrary, if any action by the Company Board permitted by, and taken in accordance with, this Section 6.4(b) shall not constitute a breach of this Agreement by the Company. Nothing in this Section 6.4(b) shall (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with permit the Company Board’s fiduciary duties under applicable Law to terminate this Agreement (except as provided in Article VIII hereof) or (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account affect any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination other obligations of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and under this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in expressly permitted by this Section 6.2(a) and in Section 6.2(d)5.3, the Company shall not (and not, nor shall cause it authorize or permit any of the Company Subsidiaries to notor any of its or their respective officers or directors (in their capacities as such), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directorsemployees, investment bankers, attorneys, accountants, financial advisorsconsultants or other advisors or representatives (such officers or directors (in their capacities as such), agentsemployees, investment bankers, attorneys, accountants, consultants and other representatives (advisors or representatives, collectively, the “Representatives”) to (and the Company shall use its reasonable best efforts to cause each such Person not to), directly or indirectly:
(i) directly or indirectly initiate, solicit, knowingly encourage, induce or knowingly facilitate (including by way of furnishing non-public information) or assist any inquiries with respect to, or the making making, submission, announcement or submission of, commencement of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) execute or enter into any Contract, letter of intent or agreement in principle relating to, or that could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”);
(iii) enter into any Contract or agreement in principle requiring the Company to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement or breach its obligations hereunder, or propose or agree to do any of the foregoing;
(iv) fail to enforce, or grant any waiver under, any standstill or similar agreement with any Person; provided, however, if the Special Committee determines by resolution in good faith, after consultation with its outside legal counsel that the failure to do so would be inconsistent with its fiduciary duties under Delaware Law, it may release any Person from its standstill or similar obligations solely for purposes of enabling such Person to confidentially submit to the Company Board an Acquisition Proposal;
(v) engage in, continue or (ii) otherwise participate or engage in any discussions or negotiations withregarding, or provide or furnish any non-public information or data relating to any the Company Entity or any of the Company Asset to, Subsidiaries or provide afford access to the business, properties, assets, books and records or records personnel of the Company or any of the Company Subsidiaries to any Person (other than Parent, Merger Sub, or any of their respective Affiliates or Representatives) with the intent to initiate, solicit, encourage, induce or assist with the making, submission, announcement or commencement of any Company Entity to, any Person proposal or offer that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is could reasonably likely be expected to lead to, a Superior any Acquisition Proposal; or
(vi) otherwise knowingly facilitate any effort or attempt to make any Acquisition Proposal.
(b) Notwithstanding Section 5.3(a), from the date hereof until the date that the Company Stockholder Approvals have been obtained, following the receipt by the Company of an unsolicited bona fide written Acquisition Proposal, (i) the Special Committee shall be permitted to participate in discussions regarding such Acquisition Proposal solely to the extent necessary to clarify the terms of such Acquisition Proposal and (zii) if the Company’s Board Special Committee determines by resolution in good faith, after consultation with its outside financial advisors and outside legal counsel, (A) that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (constitutes or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could would reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, Proposal and (iiiB) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with take the Company Board’s fiduciary duties under applicable Law, actions set forth in clauses (ivx) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal and (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information y) below with respect to such Acquisition Proposal that is specified would be inconsistent with its fiduciary duties under Delaware Law, then the Company may, in Section 6.2(e); except thatresponse to such Acquisition Proposal, if there are any material revisions (x) furnish access and non-public information with respect to the Company and the Company Subsidiaries to the Person who has made such Acquisition Proposal pursuant to an Acceptable Confidentiality Agreement (as long as all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person) and (y) participate in discussions and negotiations with such Person regarding such Acquisition Proposal.
(c) Upon execution and delivery of this Agreement, the Company shall promptly (and in any event within 48 hours after receipt), notify Parent both orally and in writing of the receipt of any Acquisition Proposal, any inquiries that would reasonably be expected to result in an Acquisition Proposal, or any request for information from, or any negotiations sought to be initiated or resumed with, either the Company or its Representatives concerning an Acquisition Proposal, which notice shall include (i) a copy of any Acquisition Proposal (relative including any financing commitments) made in writing and other written terms or proposals provided to the Company or any of its Subsidiaries and (ii) a written summary of the material terms of the any Acquisition Proposal not made in writing or any such inquiry or request. The Company shall keep Parent reasonably informed on a prompt basis (and in any event within 48 hours) of any material developments, material discussions or material negotiations regarding any Acquisition Proposal, inquiry that would reasonably be expected to result in an Acquisition Proposal, or request for non-public information and, upon the reasonable request of Parent, shall apprise Parent of the status of any discussions or negotiations with respect to any of the foregoing. None of the Company or any of its Subsidiaries shall, after the date of this Agreement, enter into any agreement that would prohibit them from providing such information or the information contemplated by the last sentence of Section 5.3(a) to Parent.
(d) Except as set forth in this Section 5.3(d), neither the Notice Company Board nor any committee thereof (including the Special Committee) shall (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Recommendation with respect to the Merger, (B) fail to include the Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal as provided or (D) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company stockholders (including, for these purposes, by disclosing that it is taking no position with respect to the Parentacceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited), then within ten (10) Business Days after commencement (any of the Company must provide foregoing, a “Change of Recommendation”) or (ii) authorize, adopt or approve or propose to the Parent a new Notice of Acquisition Proposal andauthorize, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Lawadopt or approve, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Company Stockholder Approvals are obtained (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunderbut not after), the Company Board again makes may (I) effect a Change of Recommendation if the determination Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors upon recommendation thereof by the Special Committee) that, as a result of a development or change in circumstances that occurs or arises after the execution and delivery of this Agreement (and taking into account any adjustment or modification of the terms hereof that the Parent proposesother than a Superior Proposal) that was not known to the Acquisition Proposal constitutes a Superior Proposal Special Committee prior to the execution and that the delivery of this Agreement (an “Intervening Event”), failure to make take such Adverse Recommendation Change is likely action could reasonably be expected to be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law. If the Parent proposes to Law and (II) if the Company any adjustment or modification of the terms hereof in response to a Notice of receives an Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board Proposal that the Acquisition Proposal constituted Special Committee determines in good faith (after consultation with outside counsel and its financial advisors) constitutes a Superior Proposal, then authorize, adopt, or approve such Superior Proposal and cause or permit the Company and Parent shall negotiate in good faith to enter into an Alternative Acquisition Agreement with the Parent respect to implement such adjustment or modification to the terms hereof andSuperior Proposal; provided, upon implementation of such adjustment or modificationhowever, that the Company Board shall not make an Adverse Recommendation Change may only take the actions described in (or, 1) clause (II) if already made, will reinstate its recommendation the Company terminates this Agreement pursuant to Section 7.1(c)(ii) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Company Termination Payment in favor of the Merger compliance with Section 7.3 and this Agreement, as so adjusted (2) clauses (I) or modified).(II) if:
(ei.) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall have provided prior written notice to the Parent Parties, of its or the Company Board’s intention to take such actions at least four (i4) advise Parent Business Days in writing advance of any request for non-public information taking such action, which notice shall specify, as applicable, the details of such Intervening Event or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, the Acquisition Proposal received by the Company that constitutes a Superior Proposal, inquiry, discussions, or negotiationsincluding a copy of the relevant proposed transaction agreements with, and (ii) promptly provide to Parent a detailedthe identity of, written summary of all of the material terms, provisions, party making the Acquisition Proposal and other information set forth in any materials material documents (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person financing commitments with respect to such Acquisition Proposal). The Company shall not release Proposal and any third party from, or waive any provisions of, any confidentiality or standstill agreement to which arrangements with the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf members of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company ▇▇▇▇▇ Group or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”their Affiliates); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).;
Appears in 1 contract
Sources: Merger Agreement (Asta Funding Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company, the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way Board of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each Directors of the Company, the Special Committee and the Company’s Board's officers, employees, agents and each Company Board representatives (including, without limitation, its attorneys and the Special Committee shall not Financial Advisor) may, until June 12, 2003, (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity)initiate, or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity)solicit, encourage and facilitate the approval, recommendation, or declaration making of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (as defined below) or furnish information with respect to the Company to any action person for purposes of soliciting an Acquisition Proposal from such person pursuant to a confidentiality agreement entered into between such person and the Company in form and substance reasonably satisfactory to the Company and (ii) participate in discussions and negotiations regarding, and supply information relating to, an Acquisition Proposal that could, in the Special Committee's sole discretion, lead to a Superior Acquisition Proposal. After June 12, 2003 and until the date of the mailing by the Company to its stockholders of the definitive Proxy Statement relating to the Merger, the Company, the Board of Directors of the Company, the Special Committee and the Company's officers, employees, agents and representatives (including, without limitation, its attorneys and the Special Committee Financial Advisor) may no longer initiate or solicit discussions and may only engage in the other conduct described in the immediately foregoing clauses (i) or and (ii)) above with those persons who were contacted on or prior to June 12, 2003 and who indicate, in the Special Committee's sole discretion, substantial interest in making an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d)Acquisition Proposal that the Special Committee reasonably believes could constitute a Superior Acquisition Proposal. From and after the date of mailing of the definitive Proxy Statement, the Company Company, the Board of Directors of the Company, the Special Committee and the Company's officers, employees, agents and representatives (including, without limitation, its attorneys and the Special Committee Financial Advisor) shall not be permitted to take any action or engage in any activities described in clauses (i) and shall cause the Company Subsidiaries to not)(ii) above and shall, and shall take reasonable actions to cause (and shall direct or cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter Board of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice Directors of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes Special Committee and the determination in good faith after consultation with Company's officers, employees, agents and representatives (including, without limitation, its outside legal counsel attorneys and financial advisors (the Special Committee Financial Advisor) to, immediately cease and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely cause to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company terminated any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal, except for discussions and negotiations regarding, and supplying information relating to, an Acquisition Proposal by any person who indicates, in the Special Committee's sole discretion, substantial interest in making a Superior Acquisition Proposal.
(b) Notwithstanding the foregoing, in response to an indication of interest that is not solicited in violation of this Section 5.09, the Company, the Board of Directors of the Company, the Special Committee and the material terms of such requestCompany's officers, Acquisition Proposalemployees, inquiryagents and representatives (including, discussionswithout limitation, or negotiations, its attorneys and (iithe Special Committee Financial Advisor) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (ormay, at any and all times prior to the Company’s electionEffective Time, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any participate in discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involvedregarding, and any material changes supply information relating to, an Acquisition Proposal that may, in the Special Committee's sole discretion, lead to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such a Superior Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(fc) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions For purposes of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted an "Acquisition Proposal" means any inquiry, proposal or modified).offer from any person relating to:
Appears in 1 contract
Sources: Merger Agreement (Westerbeke Corp)
Acquisition Proposals. (a) Except as provided otherwise set forth in this Section 6.2(a) 6.5, from and in Section 6.2(d)after the date of this Agreement, the Company shall not (and shall cause agrees that neither it, nor any of the Company Subsidiaries to not)shall, and that it shall take such reasonable actions to cause (not authorize or permit its and shall cause their respective Representatives retained by the Company Subsidiaries to take such reasonable actions to cause) each or any Company Entity’s officersSubsidiary to, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage, or knowingly facilitate (including by way of furnishing providing non-public information) any inquiries with respect toregarding, or the making of any, proposals or submission of, any proposal offers that constitutes, constitute or would could reasonably be expected to lead to, to an Acquisition Proposal, or (ii) engage in, continue, or otherwise participate in any negotiations or engage in discussions (other than to state that it is not permitted to have discussions) concerning, or negotiations with, furnish provide or cause to be provided any non-public information or data relating to any the Company Entity or any of the Company Asset toSubsidiaries in connection with, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal; provided, however, it is understood and agreed that any determination or action by the Company, the Special Committee, or the Company Board permitted under Section 6.5(b), Section 6.5(c) or Section 8.3(a) shall not be deemed to be a breach of this Section 6.5(a). Upon the execution of this Agreement, the Company agrees, and the Special Committee will direct, that the Company and the Company Subsidiaries and its and their Representatives will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal.
(b) Notwithstanding anything to the immediately foregoing sentencecontrary in Section 6.5(a), at any time after the date of this Agreement and prior to obtaining the Company Required Requisite Vote, the Company and the Company’s Board are permitted to take any actions described may, in clause (ii) of this Section 6.2(a) with respect response to a third party if (w) the Company has received a bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a material breach of this Section 6.2(a)6.5(a) and that the Special Committee, whether by any Company Entity or any Representative (as if all Company Entities which shall have full, sole, and Representatives were bound by this Section 6.2(a)))exclusive authority to make such decision determines, (x) the Company gives the Parent the notice required by Section 6.2(e)in its good faith judgment, (y) after receiving the advice of consultation with its outside legal counsel and financial advisors, the Company’s Board determines in good faith that such proposal constitutes, constitutes or is may reasonably likely be expected to lead to, to a Superior Proposal, (i) furnish information and data with respect to the Company and the Company Subsidiaries to the person making such Acquisition Proposal pursuant to a customary confidentiality agreement on terms at least as restrictive as those contained in the Confidentiality Agreements but excluding the “standstill” provisions thereof (except for such changes necessary in order for the Company to be able to comply with its obligations under this Agreement), and (zii) participate, through the Special Committee, in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal; provided, however, that the Company shall promptly (and in any event, within 48 hours) provide or make available to Parent any material non-public information concerning the Company or any of the Company Subsidiaries that is provided to the person making such Acquisition Proposal or its Representatives which was not previously or concurrently provided or made available to Parent.
(c) In all cases, subject to the permitted actions contemplated by Section 8.3(a) and the next sentence of this Section 6.5(c), neither the Company Board nor any committee thereof shall (i) withdraw or modify in a manner adverse to Parent or Merger Sub, or publicly propose to withdraw or modify in a manner adverse to Parent or Merger Sub, the Company Recommendation, (ii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal (any of such actions described in clauses (i) or (ii) being referred to as a “Change of Recommendation”), or (iii) adopt, approve or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement constituting, or that would reasonably be expected to result in, any Acquisition Proposal (other than a confidentiality agreement in accordance with Section 6.5(b)) (each, an “Alternative Acquisition Agreement”). Notwithstanding anything to the contrary in this Section 6.5, if, prior to obtaining the Company Requisite Vote, (A) the Company’s Board Special Committee, which shall have full, sole, and exclusive authority to make such decision, determines in good faith, after consultation with its outside legal counselcounsel and financial advisors, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is do so would be reasonably likely to be inconsistent with the discharge or exercise of the Company Board’s fiduciary duties under applicable Law; except law, it may recommend a Change of Recommendation to the Company Board, which, upon receiving such recommendation from the Special Committee, may effect a Change of Recommendation in accordance with this Section 6.5(c), and/or (B) the Company receives a written bona fide Acquisition Proposal that did not result from a material breach of Section 6.5(a) and that the Special Committee, which shall have full, sole, and exclusive authority to make such decision, determines in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, then (1i) the Company Board may make a Change of Recommendation and/or authorize the Company to terminate this Agreement pursuant to Section 8.3(a), and (ii) the Company, upon receiving such authorization from the Company Board, may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal if, with respect to this clause (ii), the Company concurrently terminates this Agreement pursuant to Section 8.3(a). The Company Board shall not be entitled to effect a Change of Recommendation or authorize the termination of this Agreement pursuant to Section 8.3(a) (and, for the avoidance of doubt, the Company shall not deliver be entitled to terminate this Agreement pursuant to Section 8.3(a)) unless the Company has provided written notice (a “Notice”) at least three (3) Business Days in advance of such Change of Recommendation or authorization to Parent and Merger Sub advising Parent that the Special Committee has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to make a Change of Recommendation or to authorize termination of this Agreement, as applicable, would be reasonably likely to be inconsistent with the discharge or exercise of its fiduciary duties under applicable law. For the avoidance of doubt, any purported termination of this Agreement pursuant to Section 8.3(a) shall be void and of no force and effect unless the Company complies with this Section 6.5(c) and pays the Termination Fee in accordance with Section 8.5(b) prior to or substantially concurrently with such termination. In the event that the basis of such proposed action by the Special Committee, the Company Board and/or the Company is in connection with a Superior Proposal, (x) the Notice shall include the terms and conditions of such Superior Proposal (including the identity of the third party making the Superior Proposal and any financing materials related thereto, if any) and include with it copies of any proposed transaction documents with respect to such Superior Proposal, (y) during the three (3) Business Day period following receipt by Parent and Merger Sub of the Notice, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing Documents so that such Superior Proposal ceases to constitute a Superior Proposal, and (z) following the end of the three (3) Business Day period, the Company Board and the Special Committee shall have determined in good faith after consultation with their outside legal counsel and financial advisors, taking into account any changes to this Agreement and the Financing Documents proposed in writing by Parent and Merger Sub in response to the Notice or otherwise, that the Superior Proposal giving rise to the Notice continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice and the Company shall be required to comply again with the requirements of this Section 6.5(c), provided that, for purposes of complying with the requirements of this sentence, the three (3) Business Day period described above in this Section 6.5(c) shall be reduced to two (2) Business Days.
(d) The Company shall promptly (and in any event within 48 hours of knowledge thereof) notify Parent in writing of (i) any written Acquisition Proposal received by the Company, (ii) any request for non-public information relating to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Company Subsidiaries, other than requests for information not reasonably expected to be related to an Acquisition Proposal, and (iii) any inquiry or request for discussion or negotiation regarding an Acquisition Proposal, including in each case the identity of the person making any such Acquisition Proposal, inquiry or request and the material terms of any such Acquisition Proposal, inquiry or request; provided, in each case, that such Acquisition Proposal, request or inquiry is received by the Company Board or the Special Committee, its agents or its advisors. The Company shall (A) keep Parent informed in all material respects of the status and details (including material amendments to the terms thereof) of such Acquisition Proposal, inquiry or request and (B) provide to Parent as soon as practicable after receipt thereof copies of all material written correspondence relating to such Acquisition Proposal or request exchanged between the Company or any of the Company Subsidiaries, on the one hand, and the person making such Acquisition Proposal or request, on the other hand, concerning the material terms and conditions thereof; provided that this obligation shall be excused if and to the extent that the Company Board or Special Committee and its Representatives shall be unaware of such information and documents.
(e) Nothing set forth in this Agreement shall be deemed to prohibit the Company Board, after consultation with the Special Committee, or the Special Committee, after providing prior notice to the Company Board, from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to contemplated by Rule 14e-2(a), Rule 14d-9 or 14e-2(aItem 1012(a) of Regulation M-A promulgated under the Exchange Act (or from making any similar disclosurecommunication to stockholders in connection with the making or amendment of a tender offer or exchange offer), in either case to the extent required by applicable Law, including provided that the Company Board’s fiduciary duties; except that compliance with such rules will not permit Board shall expressly reaffirm the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) such disclosure. The parties agree and in Section 6.2(g)acknowledge that, each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee for purposes of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), a factually accurate public statement by the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after describes the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances and the operation of this Agreement with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board thereto shall not make an Adverse Recommendation in and of itself be deemed a Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Recommendation.
Appears in 1 contract
Acquisition Proposals. (a) Except From the date hereof until the termination hereof and except as provided expressly permitted by the following provisions of this Section 7.3, the Company will not, nor will it permit any of its subsidiaries to, nor will it authorize or direct any officer, director, or employee of or any investment banker, attorney, accountant, or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate, or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing contained in this Section 6.2(a7.3(a) shall prohibit the Company Board from furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Company Board, after consultation with independent legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable Law, (B) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory, and other aspects of the proposal and the person making the proposal, and believes in good faith, after consolation with its Financial Advisor, that such Acquisition Proposal would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Offer and the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (C) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in Section 6.2(d)any event containing terms at least as stringent as those contained in the Confidentiality Agreement between Parent and the Company. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall not notify Parent of any Acquisition Proposal (including, the material 43 51 terms and shall cause conditions thereof and the Company Subsidiaries to not)identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall take such reasonable actions to cause (provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall cause thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, agents, and other agents and representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and shall notify each party that it, or any officer, director, investment advisor, financial advisor, attorney, or other agent or representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board no longer seeks the making of any Acquisition Proposal. The Company shall (i) take the all necessary steps to promptly inform the Representatives involved individuals or entities referred to in the Transactions first sentence of this Section 7.3(a) of the obligations undertaken in this Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf7.3(a).
(gb) Nothing The Company Board will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement will prohibit Agreement, the Offer, or restrict the Company’s Merger unless the Company Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances after consultation with respect to the Parent Business occurring or arising after the Signing Dateindependent legal counsel, if (i) the Company’s Board determines in good faith that such action is necessary for the Company Board to comply with the fiduciary duties to the Company's stockholders under applicable Law; provided, however, that the Company Board may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement, the Offer, or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first complied with its obligations set forth in Section 9.1(d)(i)) and unless it shall have first consulted with independent legal counsel, and have determined that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders. Nothing contained in this Section 7.3(b) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders which, in the good faith reasonable judgment of the Company Board, after consultation with its outside independent legal counsel that not making such Adverse Recommendation Change counsel, is likely to be inconsistent with the Company Board’s fiduciary duties required under applicable Law (ii) subject to compliance with applicable Law; provided, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change however, that except as otherwise permitted in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (iithis Section 7.3(b), the Company Board again makes the determination does not withdraw or modify, or propose to withdraw or modify, its position in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification respect of the terms hereof that Offer or the Parent proposes in writing) that failure Merger, or approve or recommend, or propose to make such approve or recommend, an Adverse Recommendation Change is likely Acquisition Proposal. Notwithstanding any other provision of this Agreement to be inconsistent with the contrary, any action by the Company Board’s fiduciary duties under applicable LawBoard permitted by, and taken in accordance with, this Section 7.3(b) shall not constitute a breach of this Agreement by the Company. If the Parent proposes to Nothing in this Section 7.3(b) shall (i) permit the Company to terminate this Agreement (except as provided in Article IX) or (ii) affect any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination other obligations of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and under this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to will cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) Affiliates not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or the making engage in any negotiations concerning, or submission ofprovide any confidential information to, or have any discussions with, any proposal that constitutes, or would reasonably be expected to lead person relating to, an any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) participate providing (or engage authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that person who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.2(a6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))only to the extent that, (x) in the Company gives case of actions referred to in clause (ii), the Parent Company's Board of Directors determines in -46- 51 good faith that such Acquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the notice required by Section 6.2(ecase of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company's Board of Directors, after receiving having consulted with and considered the advice of its financial advisorsoutside counsel to such Board, the Company’s Board determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation, is required in order to discharge the directors' fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a third party on terms which the Company's Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal constitutesand any other relevant factors permitted under applicable law, or is reasonably likely after giving Parent at least five Business Days to lead to, respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and (z) the Company’s Board determines in good faiththen taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable negotiations conducted prior to the Company than those contained in the Confidentiality date of this Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change parties other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a)Parent, with respect to an any of the foregoing. The Company shall promptly (within 24 hours) advise Parent following the receipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the person making such Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by and advise Parent of any Company Entity or developments (including any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))change in such terms) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to promptly upon the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)occurrence thereof.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Merger Agreement (Ubs Americas Inc)
Acquisition Proposals. 5.5.1 From and after the date hereof and until and including the Effective Time (a) Except as provided in or earlier termination of this Section 6.2(a) and in Section 6.2(dAgreement), the Company shall not immediately cease and cause to be terminated any activities, discussions or negotiations with respect to an Acquisition Proposal (and shall cause the Company Subsidiaries to notas defined herein), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s shall not, nor shall it permit any Subsidiary, or authorize or permit any of its officers, directors, directors or employees or holders of more than five percent of its outstanding shares of Common Stock or any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agentsattorney, and accountant or other representatives (collectivelyrepresentative or agent of the Company or any Subsidiary, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly solicit, initiate, solicit, knowingly encourage, or facilitate encourage (including by way of furnishing non-public or otherwise providing, or providing access to nonpublic information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or ; (ii) participate in any discussions or engage negotiations relating to any Acquisition Proposal (or any inquiry relating to an Acquisition Proposal) or take any other action to facilitate any inquiries or the making of any proposal that constitutes an Acquisition Proposal; or (iii) enter into any letter of intent, agreement in principle or definitive agreement with respect to any Acquisition Proposal; provided, however, that nothing contained in this Section 5.5 shall prohibit the Company or the Board from furnishing nonpublic information to, or entering into discussions or negotiations with, furnish any non-public information person or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) entity with respect to a third party any unsolicited Acquisition Proposal if (wbut only if): (a) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after due investigation and after consultation with and based upon the advice of its outside legal financial advisor, that such Acquisition Proposal is a Superior Proposal (as defined below); (b) the Board determines reasonably and in good faith, after due investigation and after consultation with and based upon the advice of outside counsel, that the failure to participate in take such negotiations or discussions or action would cause the Board to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s violate its fiduciary duties to stockholders under applicable Lawlaw in the context of the Transactions; except that and (1c) the Company shall not deliver any non-public information (x) provides at least two business days' notice to Acquiror to the effect that it is taking such third party without first entering into a action and (y) receives from such person or entity an executed confidentiality agreement with such third party on terms no less favorable substantially similar to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject . Notwithstanding the foregoing, nothing in this Section 5.5 will restrict the Company from effecting the Power Facility Sales as contemplated hereby.
5.5.2 Notwithstanding anything in this Agreement to applicable Lawthe contrary, the Company shall make available to promptly advise Parent orally and in writing of the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to receipt by it (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making by any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, other entities or persons referred to above) after the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration date hereof of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that inquiry which could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach material terms and conditions of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawnor inquiry, (ii) and the Company’s Board determines in good faith after consultation with its legal and financial advisors that identity of the person or entity making any such Acquisition Proposal constitutes Proposal. The Company agrees that it will fully enforce (including by way of obtaining an injunction), and not waive any provision of, any confidentiality agreement to which it is a party.
5.5.3 For purposes of this Agreement: "Acquisition Proposal" means any bona fide offe or proposal with respect to a merger, consolidation, share exchange or similar transaction involving the Company or any Subsidiary or any purchase of all or any significant portion of the assets or capital stock of the Company or any significant Subsidiary or any other business combination (including the acquisition of any equity interest therein) involving the Company excluding, however, any proposal or transaction with respect to the Power Facilities; and "Superior Proposal, (iii) " means an Acquisition Proposal which the Company’s Board determines believes in good faith, after consultation with due investigation (taking into account, among other things, the financing terms and the likelihood of consummation) and based upon the advice of its outside legal counseland financial advisors, that the failure is more favorable to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because 's stockholders from a financial point of such Acquisition Proposal view than the Merger (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modifiedDistribution).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company shall, the Company shall not (and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and use reasonable best efforts to cause its stockholders (including without limitation the Company Subsidiaries to notMajority Stockholders), representatives and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives agents (collectively, the “RepresentativesRestricted Parties”) not to, immediately cease and cause to be terminated any discussions or negotiations with any parties (iother than the parties to this Agreement and their Affiliates, representatives and advisors) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries that may be ongoing with respect to, or that would be reasonably expected by the making or submission of, any proposal that constitutes, or would reasonably be expected parties to lead to, an a Company Acquisition Proposal. The Company shall not and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and shall use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents not to, directly or indirectly, (x) take any action to enter into any agreement with respect to any Company Acquisition Proposal, or (iiy) participate or engage in discussions or negotiations withsolicit, negotiate, furnish any non-public information to, accept, encourage, consider, participate in negotiations or data discussions relating to any Company Entity or any Company Asset to, or provide access to the propertiesotherwise pursue, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding , other than the immediately foregoing sentencetransactions contemplated by this Agreement; provided, however, that at any time prior to obtaining the date that is 20 Business Days after the date of this Agreement, in response to a bona fide written unsolicited Company Acquisition Proposal received after the date hereof that the Board of Directors of the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes, or is reasonably likely expected to lead to, a Superior Proposal, and (z) which Company Acquisition Proposal was not, directly or indirectly, the Company’s Board determines in good faithresult of a breach by any Restricted Party of this Section 9.13(a), after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that may, subject to compliance with Section 9.13(b) and Section 9.13(c), (1i) the Company shall not deliver any non-public furnish information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable respect to the Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than those contained in the Confidentiality Agreement (any provided that all such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is has previously been delivered or made available to any other Person Investor or group in connection with any actual is delivered or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously Investor prior to or concurrently with the delivery of such information to (or as promptly as practicable after such information time it is delivered to) or made available to such Person. Nothing contained ), and (ii) participate in this Section 6.2 will prohibit discussions or negotiations with the Person making such Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a(and its representatives) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the regarding such Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)Acquisition Proposal.
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each The Board of Directors of the CompanyCompany has adopted a resolution declaring that this Agreement, the issuance of the Securities to the Investor as contemplated herein, the amendments to the Company’s Boardcertificate of incorporation as contemplated by the Written Consent, and each the amendment to the Company’s 2006 Long-Term Incentive Plan are advisable, fair to and in the best interests of the Company and its stockholders, recommending that the Company’s stockholders approve and adopt this Agreement, the issuance of the Securities to the Investor as contemplated herein, the amendments to the Company’s certificate of incorporation as contemplated by the Written Consent, and the amendment to the Company’s 2006 Long-Term Incentive Plan and directing that such items be submitted for consideration by the Company’s stockholders (the “Company Recommendation”). Neither the Board Committee of Directors of the Company nor any committee thereof shall not (i) (A) withdraw or withhold (or amend or modify in a manner adverse to any Buyer EntityInvestor), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer EntityInvestor), the approval, recommendation, Company Recommendation or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (iiB) recommend, adopt, adopt or approve, or publicly propose publicly to recommend, adopt, adopt or approve, any Company Acquisition Proposal (any action described in the immediately foregoing clauses (i) Proposal, or (ii)) approve or recommend, an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d)or publicly propose to approve or recommend, that any of the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, Restricted Parties execute or enter into into, any Contract (including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement)agreement constituting or related to, or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating that is intended to or that could would be reasonably be expected to lead to to, any Company Acquisition Proposal (other than a confidentiality agreement referred to in and as permitted by Section 9.13(a)) (an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or “Acquisition Agreement”) (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any each of the Transactions.
(d) Notwithstanding the foregoing items set forth in each subsection of this Section 6.2sentence, a “Company Adverse Action”). Notwithstanding the foregoing, at any time prior to obtaining the close of business on the day that is 20 Business Days after the date of this Agreement (such 20-Business Day period, the “Consent Delivery Period”), the Board of Directors of the Company Required Vote, and subject (or any committee thereof) may approve or allow the Company or a Subsidiary to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), enter into an Acquisition Agreement with respect to an Acquisition a Superior Proposal, and/or may withdraw or modify (including in a manner adverse to Investor) the Company Recommendation and/or recommend a transaction with respect to a Superior Proposal (each an “Adverse Recommendation Change”), if, in each case, such Board of Directors (or any committee thereof) determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that taking such action is necessary for the members of the Board of Directors of the Company to comply with their fiduciary duties to the holders of the Common Stock under applicable Law (such determination, a “Fiduciary Duty Determination”); provided, however, that (i) no action described in the preceding portion of this
(a) except insofar as the Board of Directors of the Company (or a committee thereof) makes a Fiduciary Duty Determination that such further action is necessary, and (iii) the Company shall not take any further actions described in (x) or (y) of Section 9.13(a) (except insofar as the Board of Directors of the Company (or a committee thereof) makes a Fiduciary Duty Determination that such further action is necessary) if, prior to the expiration of such five (5) Business Day period, Investor makes a proposal in writing to adjust the terms and conditions of this Agreement, which adjusted terms the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board Directors determines in good faith (after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iiiadvisors) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with at least as favorable as the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Superior Proposal (such notice, a the “Notice of Acquisition Investor Amended Proposal”), it being understood provided the restrictions of this clause (iii) shall be applicable only for so long (including the five (5) Business Day review period provided above) as the prior Superior Proposal is not amended to result in a proposal that constitutes a Superior Proposal to the Investor Amended Proposal, in which event the process will be continued until either the Investor or the Person making a Superior Proposal fails or refuses to amend the terms of such party’s proposal to top the other party’s proposal. In the event that a Superior Proposal is received by the Company, and a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Superior Proposal that is specified delivered to the Investor, before the expiration of the Consent Delivery Period, the duration of the Consent Delivery Period shall be extended and shall not expire until after five (5) Business Days shall have elapsed from the date Investor has received such Notice of Adverse Recommendation (or any subsequent Notice of Adverse Recommendation in Section 6.2(e); except thatresponse to any Amended Investor Proposal) and has not delivered to the Company an Amended Investor Proposal. Nothing in this Agreement shall obligate the Board of Directors of the Company or any committee thereof to make or cause to be made, or to fail to make or cause to be made, any public disclosure or communication with any stockholder or stockholders of the Company, if there are any material revisions to the Acquisition Proposal such disclosure or communication, or lack thereof, would constitute a breach of such Board’s or committee’s duties under applicable Laws.
(relative to the terms c) Each of the Acquisition Proposal as set forth Company and Investor shall promptly advise the other party orally and in the Notice writing of Acquisition Proposal as provided receipt by such party of (i) any request for information relating to the Parent), then the a Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (vii) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company or (iii) any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations inquiry with respect to any Company Acquisition Proposal, Proposal and the material terms and conditions of any such request, Company Acquisition Proposal, inquiry, discussions, Proposal or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials inquiry (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Company Acquisition Proposal, Proposal or inquiry or with whom and a copy of any discussions or negotiations are taking placecorrespondence relating thereto). The Each of the Company and Investor agrees that it shall keep the Parent reasonably other party informed of the status and material details (including material amendments or material proposed amendments and a copy of any correspondence relating thereto) of any such request, Company Acquisition Proposals Proposal or inquiry and keep the other reasonably informed as to the material details of any information requested of the Company or Investor, as the case may be, and as to the material terms and conditions of any Company Acquisition Proposal.
(including d) Nothing contained in this Section 9.13 shall prohibit the Company or its Board of Directors from (i) taking and disclosing to the Parent the identity stockholders of the parties, Company a position contemplated by Rule 14e-2 promulgated under the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, Exchange Act or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration making any disclosure to the stockholders of acquiring the Company or any portion thereof to return or destroy (and certify such destruction if, in writing by an executive officer the good faith judgment of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if of Directors (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making counsel), such Adverse Recommendation Change is likely to disclosure would be inconsistent with the Company Board’s fiduciary duties required under applicable Law (iiincluding Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act).
(e) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination Each of the Company Board and Investor acknowledge and agree that it make an Adverse Recommendation Changein the event any of their respective Restricted Parties takes any action which, if taken by the Company or Investor, as applicable, would constitute a breach of this Section 9.13, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this AgreementInvestor, as so adjusted or modified)applicable, shall be deemed to be in breach of this Section 9.13 for such action by its Restricted Parties.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ram Energy Resources Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or furnish any nonpublic information relating to or participate in any negotiations or discussions concerning, any acquisition or purchase of all or a substantial portion of the making or submission assets of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisorssubstantial equity interest in, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) any merger or other business combination with the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company other than those contained in the Confidentiality as contemplated by this Agreement (any such confidentiality agreement with such third party, an transaction being referred to as a “Acceptable Confidentiality AgreementBusiness Combination”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) The Company shall instruct its officers, directors, agents, advisors and in Section 6.2(g), each Affiliates to refrain from taking any action that would violate or conflict with any of the Companyprovisions of this Section 5.11; and it shall notify Purchaser immediately if any such inquiries or proposals are received by, or any such negotiations or discussions are sought to be initiated with, the Company’s Board.
(c) Nothing in this Section 5.11, and each will prevent the Company Board Committee shall not from (i) withdraw or withhold (or amend or modify providing information in response to a manner adverse request therefor by a Person who has made an unsolicited bona fide written proposal for a Business Combination, if the Company receives from the Person an executed confidentiality agreement acceptable to any Buyer Entity)Purchaser in its reasonable discretion, or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommendengaging in any negotiations or discussions with any person who has made such an unsolicited bona fide written proposal, adoptif and only to the extent that, or approve, or propose publicly (A) in each such case referred to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses clause (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions board of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board directors determines in good faith (after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iiiadvisor) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change proposal, if accepted, is reasonably likely to be inconsistent consummated, and would, if consummated, result in a transaction more favorable to the holders of capital stock of the Company from a financial point of view than the transactions contemplated herein. If negotiations or discussions are initiated in accordance with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Lawpreceding sentence, the Company provides agrees that it will notify Purchaser promptly, and will from time to time (or at any time at the Parent three Business Days’ prior written notice request of Purchaser) notify Purchaser of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) progress thereof (including all current terms and any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such Purchaser may from time to time request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to agrees that it will immediately cease and terminate cause to be terminated any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposalsuch acquisition or purchase. The Company shall (i) take the necessary steps agrees to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a use all reasonable efforts to enforce any confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof and/or “stand-still” Contract to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that which it is considering a party and not to amend, terminate, waive or release any provision of any such Contract in a recommendation change manner that is material and summarizing in reasonable detail adverse to its rights under the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Turbochef Technologies Inc)
Acquisition Proposals. (a) Except as provided in From the date of this Section 6.2(a) and in Section 6.2(d)Agreement until the Effective Time, or, if earlier, the Company shall not (termination of this Agreement in accordance with its terms, Parent and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to cause (and shall cause nor will either party permit any of its subsidiaries to, nor will either party authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, Parent or the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officersCompany, directorsas appropriate, investment bankersor any of its subsidiaries to, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourageencourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing furnish to any person any non-public information) information in respect of, or knowingly take any other action to facilitate, any Acquisition Proposal or any inquiries with respect to, or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal, provided, however, that nothing contained in this Section 6.6(a) shall prohibit the Parent Board or (ii) participate the Company Board, as appropriate, from furnishing any information to, or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide Acquisition Proposal if, or provide access and only to the propertiesextent that (A) the Parent Stockholder Meeting or the Company Stockholder Meeting, books as appropriate, shall not have occurred, (B) the Parent Board or records the Company Board, as appropriate, after consultation with outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of Parent or the Company, as appropriate, under applicable Law, as such duties would exist in the absence of any Company Entity tolimitation in this Agreement, any Person that has made an Acquisition Proposal (C) the Parent Board or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required VoteBoard, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a)as appropriate, whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or Acquisition Proposal is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).lead
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) From and in Section 6.2(d)after the date hereof, the Company shall will not, directly or indirectly, and will instruct its officers, directors, employees, agents or advisors or other representatives or consultants not (and shall cause to, directly or indirectly, solicit or initiate any proposals or offers from any person relating to any acquisition or purchase of all or a material amount of the assets of, or any securities of, or any merger, consolidation or business combination with, the Company Subsidiaries (any such proposal or offer being referred to notherein as an "Acquisition Proposal"), and shall take immediately cease and cause to be terminated any existing activities, discussions or negotiations with any persons conducted heretofore with respect to any such reasonable actions to cause (and shall cause Acquisition Proposal; PROVIDED, however, that the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, may furnish information and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or may engage in discussions or negotiations withwith any person if, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to following the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation receipt of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a unsolicited bona fide written Acquisition Proposal from any such third party person (and i) counsel advises the Company's directors that failure to furnish such Acquisition Proposal did not result from information or engage in such discussions or negotiations could involve the Company's directors in a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, their fiduciary duties and (zii) the Company’s Board determines 's directors believe, in good faith, after consultation with its outside legal counselthe Company's financial advisors, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into person may make a confidentiality agreement with such third party on terms no less bona fide proposal for a transaction more favorable to the Company Company's shareholders than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third partytransactions contemplated by the Merger; PROVIDED FURTHER, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Lawhowever, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing nothing contained in this Section 6.2 will 4.2 shall prohibit the Company or the Company’s its Board of Directors from taking and disclosing making such disclosure to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure's shareholders which, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each judgment of the CompanyBoard of Directors with the advice of counsel, the Company’s Board, and each may be required under applicable law. The Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any will promptly notify Parent of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at receipt of any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end fiduciary duties of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension Company's board of such period required thereunder)directors, the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the keep Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentthereof.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Merger Agreement (Di Industries Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such will cause its Subsidiaries and use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or facilitate (including by way iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal, except to notify a person that has made or, to the knowledge of furnishing non-public information) the Company, is making any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead tois considering making, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to Proposal of the properties, books or records existence of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) provisions of this Section 6.2(a) with respect 6.10(a); provided that, prior to a third party if (w) the adoption of this Agreement by the stockholders of the Company has received a by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach after the date of this Section 6.2(a), whether by any Company Entity or any Representative Agreement and its Board of Directors concludes in good faith (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its outside counsel and with respect to financial matters, its financial advisors, the Company’s Board determines in good faith ) that such proposal constitutes, Acquisition Proposal constitutes or is reasonably more likely than not to lead to, result in a Superior Proposal, it may, and (z) the Company’s Board determines in good faithmay permit its Subsidiaries and its and its Subsidiaries’ Representatives to, after consultation with its outside legal counsel, that the failure furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions or to furnish the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such information or data actions would be more likely than not to such third party is likely to be inconsistent with the Company Board’s result in a violation of its fiduciary duties under applicable Lawlaw; except that (1) provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall not deliver any non-public have provided such information to such third party without first entering Parent and entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law), the Company which confidentiality agreement shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection not provide such person with any actual or potential Acquisition Proposal that was not previously made available exclusive right to the Parent, contemporaneously negotiate with the delivery Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position Agreement with any person other than Parent with respect to an any Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(aProposal. The Company will promptly (within twenty-four (24) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(bhours) Except as provided in Section 6.2(d) and in Section 6.2(g), each advise Parent following receipt of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that inquiry which could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the substance thereof (including the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person person making such inquiry or group making any such request, Acquisition Proposal), or inquiry or with whom any discussions or negotiations are taking place. The Company shall and will keep the Parent reasonably informed of the status apprised (and in any event within twenty-four (24) hours) of any Acquisition Proposals (related developments, discussions and negotiations on a current basis, including disclosing any amendments to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all or revisions of the material terms, provisions, terms of such inquiry or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (A) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving the Company and (B) use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (other than an Acceptable Confidentiality Agreement). As used in this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) take any acquisition or purchase, direct or indirect, of 25% or more of the necessary steps to promptly inform consolidated assets of the Representatives involved Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the Transactions aggregate, constitute 25% or more of the obligations undertaken in Section 6.2(a) and consolidated assets of the Company, (ii) request each Person who has heretofore executed any tender offer (including a confidentiality agreement self-tender offer) or exchange offer that, if consummated, would result in connection with such Person’s consideration third party beneficially owning 25% or more of acquiring any class of equity or voting securities of the Company or any portion thereof its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the date hereof, request and confirm the return or destroy (and certify such destruction in writing by an executive officer of such Person) all any confidential information heretofore furnished provided to any person (other than Parent and its affiliates) pursuant to any such Person by confidentiality, standstill or on its behalf.
(g) Nothing similar agreement. As used in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Agreement, “Superior Proposal” shall mean a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in response good faith to a material adverse development or change in circumstances with respect be more favorable to its stockholders than the Parent Business occurring or arising after Merger and the Signing Dateother transactions contemplated hereby, if (i) after receiving the Company’s Board determines in good faith after consultation with advice of its outside legal counsel that not making such Adverse Recommendation Change is likely to financial advisors (who shall be inconsistent with the Company Board’s fiduciary duties under applicable Law a nationally recognized investment banking firm), (ii) subject to compliance with applicable Law, after taking into account the Company provides the Parent three Business Days’ prior written notice likelihood of the Company’s intention to make public an Adverse Recommendation Change because consummation of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail transaction on the reasons therefor; terms set forth therein and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account all legal (with the advice of outside counsel) financial (including the financing terms of any adjustment or modification such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the terms hereof that definition of “Superior Proposal,” the Parent proposes reference to “25%” in writing) that failure to make such an Adverse Recommendation Change is likely the definition of Acquisition Proposal shall be deemed to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes references to the Company any adjustment or modification of the terms hereof in response to “a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)majority.”
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in Subject to the provisions of this Section 6.2(a) and in Section 6.2(d)6.3, prior to the Effective Time, the Company shall not (not, directly or indirectly, and the Company shall cause the Company its Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, and the Company shall use its reasonable best efforts to cause the Representatives of the Acquired Corporations not to, directly or indirectly:
(i) directly or indirectly solicit, initiate, solicitinduce, knowingly encourage, facilitate or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or knowingly encourage the making or submission of, of any proposal that constitutes, Acquisition Proposal;
(ii) furnish any nonpublic information regarding any of the Acquired Corporations to any Person in connection with or would reasonably be expected in response to lead to, an Acquisition Proposal, or ;
(iiiii) participate or engage in discussions or negotiations withwith any Person with respect to any Acquisition Proposal;
(iv) approve, furnish endorse or recommend any non-public information Acquisition Proposal;
(v) take any action in connection with an Acquisition Proposal that could render any of the restrictions of Section 203 of the DGCL (“Section 203”) inapplicable to any Person (other than members of the Purchaser Group); or
(vi) enter into any letter of intent or data similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Acceptance Time (or if Section 6.7 applies, the Expiration Date referenced therein), Section 6.3(a) shall not prohibit or limit the Company Entity or any Company Asset (including through the Special Committee) from furnishing nonpublic information regarding the Acquired Corporations to, or provide access to the properties, books or records of any Company Entity toentering into discussions with, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior response to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from submitted to the Company (including through the Special Committee) by such third party Person (and not withdrawn) or from providing waivers of Section 203 to any Person for the limited purpose of facilitating such Acquisition Proposal did actions (which waivers shall not result from a breach be broader in any material respect than the waiver of Section 203 provided to Purchaser and/or Sub by the Board in connection with this Section 6.2(a), whether by any Company Entity Agreement and the Contemplated Transactions) that the Board (acting through the Special Committee or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (xotherwise) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is could reasonably likely to lead to, result in a Superior Proposal, and Proposal by such Person if: (zA) none of the Acquired Corporations nor any of their respective Representatives shall have breached in any material manner any of the provisions set forth in Section 6.3; (B) the Company’s Board (acting through the Special Committee or otherwise) determines in good faith, after consultation with its outside financial and legal counseladvisors, that such action is necessary for the failure Board (acting through the Special Committee or otherwise) to participate act in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent a manner consistent with the Company Boarddirectors’ exercise of their fiduciary obligations to the Company’s fiduciary duties under stockholders imposed by applicable Law; except that (1C) within twenty-four (24) hours of furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company shall not deliver any non-public provide Purchaser written notice setting forth the identity of such Person, and the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (D) prior to such third party without first furnishing nonpublic information regarding the Acquired Corporations to, or entering into a material negotiations with, such Person, the Company receives (or theretofore received) from such Person an executed confidentiality agreement with such third party on terms no containing customary provisions (including provisions not less favorable to the Company than those contained the provisions in the Confidentiality Agreement Agreement); and (E) promptly after furnishing any such confidentiality agreement with nonpublic information to such third partyPerson, an “Acceptable Confidentiality Agreement”) and the Company makes available such nonpublic information to Purchaser (2) subject to applicable Lawthe extent such nonpublic information has not been previously made available by or on behalf of the Company to Purchaser or its Representatives). Without limiting the generality of the foregoing, the Company shall make available use its reasonable best efforts to cause its Affiliates (other than Principal and his Representatives) and Representatives to not take any action in violation of any of the Parent provisions set forth in the preceding sentence.
(c) If any non-public information concerning any Company Entity that Acquisition Proposal is made available or submitted by any Person, then the Company shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal) advise Purchaser orally and in writing of such Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, and the material terms thereof). The Company shall inform Purchaser on a reasonably current basis with respect to: (i) the status of any such Acquisition Proposal; and (ii) the status and material terms of any modification or proposed modification thereto.
(d) The Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available other than with respect to the Parentany Excluded Transaction (as to which discussions and negotiations related thereto, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained nothing in this Section 6.2 will prohibit the Agreement shall limit).
(e) The Company or the Company’s Board from taking and disclosing agrees not to the Company’s stockholders a position release any Person with respect to an Acquisition Proposal pursuant from, or to Rule 14d-9 waive any provision of, any confidentiality, non-solicitation, no hire or 14e-2(a) promulgated similar Contract to which any of the Acquired Corporations is a party or under which any of the Exchange Act or from making Acquired Corporations has any similar disclosurerights, in either case to the extent required by applicable Law, including and the Company Board’s fiduciary duties; except that compliance with shall, and shall cause its Subsidiaries to, enforce the provisions of any such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)Contract.
(bf) Except as provided in Neither the Company nor the Board (acting through the Special Committee or otherwise) shall prior to the Acceptance Time (or, if Section 6.2(d) and in Section 6.2(g), each of the Company6.7 applies, the Company’s Board, and each Company Board Committee shall not Expiration Date referenced therein) (i) withdraw (w) formally determine to withdraw, amend, qualify or withhold (or amend or modify modify, in a manner adverse to any Buyer Entity)Purchaser or Sub, (x) propose publicly to withdraw, amend, qualify or publicly propose to withdraw or withhold (or amend or modify modify, in a manner adverse to any Buyer EntityPurchaser or Sub, (y) formally determine to change to a neutral position or no position, or (z) subject to the first sentence of Section 6.3(g), propose publicly to change to a neutral position or no position, the approvalCompany Recommendation, recommendation, it being understood and agreed that neither (X) explanations of the reasons for any adoption or declaration reaffirmation of advisability the Company Recommendation provided in good faith by the Company’s Board Company (through the Board, the Special Committee or otherwise) nor (Y) the taking of any Company Board Committee or all of the actions contemplated by the penultimate sentence of this AgreementSection 6.3(f) are subject to, nor deemed to cause or result in the Mergerbreach of, or any Transactionsthis clause “(i)”, (ii) (x) formally determine to adopt, approve or recommend, or (y) publicly propose to adopt, approve or approverecommend, or publicly take a neutral position or no position or propose publicly to recommend, adopt, take a neutral position or approveno position with respect to, any Acquisition Proposal (Proposal, it being understood and agreed that the taking of any action described in or all of the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in by the penultimate sentence of this Section 6.2(a6.3(f) is not subject to, nor deemed to cause or result in the breach of, this clause “(ii)”, (iii) subject to the first sentence of Section 6.3(g), make any public statement or take any public action that is inconsistent in any material respect with the Company Recommendation which is not promptly (and in any case no later than twenty-four (24) hours after the written request by Purchaser) retracted and corrected by the Company, together with a reaffirmation of the Company Recommendation in a press release following the written request by Purchaser, (iv) subject to Section 6.3(g), fail to send the Company’s stockholders, within three (3) Business Days after the commencement of a tender or exchange offer (other than pursuant to this Agreement), a statement that the Company recommends rejection of such tender or exchange offer and a reaffirmation of the Company Recommendation; or (iiv) requiring subject to Section 6.3(g), fail to send the Company’s stockholders within three (3) Business Days after the date any Acquisition Proposal or any material modification thereto is first published or sent or given to the Company’s stockholders, a statement that the Company reaffirms the Company Recommendation or the Company otherwise fails to abandon, terminate, or fail to consummate issue a press release that reaffirms the Merger or Company Recommendation (any of the Transactions.
actions or events described in clauses “(d) Notwithstanding i),” “(ii)”, “(iii)”, “(iv)” and “(v)”, a “Change in Recommendation”; provided that a Change in Recommendation under the foregoing set forth subclauses “(iii)”, “(iv)” and “(v)” shall not occur until the failure of the Company (acting through the Board, the Special Committee or otherwise) to cure any inadvertent breach of such clauses “(iii)”, “(iv)” or “(v)” within one (1) Business Day of the Company’s receipt from Purchaser of reasonable notice of the details of such breach). Notwithstanding anything in this Section 6.26.3 to the contrary, at any time prior to obtaining the Company Required VoteAcceptance Time (or, and subject to if Section 6.7 applies, the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(aExpiration Date referenced therein), with respect to the Board (upon recommendation by the Special Committee) may, make a Change in Recommendation if: (A) the Board (acting through the Special Committee or otherwise) receives an Acquisition Proposal, Proposal that the Company’s Board is permitted to make an Adverse Recommendation Change if (iupon recommendation by the Special Committee) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board formally determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, Proposal after taking into account any Purchaser Proposal received during the Notice Period (iiia “Superior Proposal Determination”) and the Company’s Board (upon recommendation by the Special Committee) formally determines in good faith, after consultation with its outside financial and legal counseladvisors, that the failure to make such an Adverse Recommendation Change is likely to not making a Superior Proposal Determination would be inconsistent with the Company Board’s its fiduciary duties under applicable Law; or (B) the Board (upon recommendation by the Special Committee) formally determines in good faith that an Intervening Event has occurred, and the Board (ivupon recommendation by the Special Committee) subject formally determines in good faith, after consultation with financial and legal advisors, that not making a Change in Recommendation due to compliance such Intervening Event would be inconsistent with its fiduciary duties under applicable Law, ; provided that in each case of a Superior Proposal Determination: (w) the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition has notified Purchaser in writing that it has made a Superior Proposal Determination (any such notice, a “Notice of Acquisition ProposalSuperior Proposal Notice”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include shall (1) contain the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except thatidentity of the Person making the Superior Proposal, if there are any (2) specify the material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Superior Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v3) at the end contain a copy of the three-Business Day period described in documents and/or agreements providing for the immediately foregoing clause (iv) Superior Proposal (including any extension of such period other material documents or agreements relating thereto); (x) if a Superior Proposal Notice has been delivered or is required thereunderto be delivered because a Superior Proposal Determination has been made by the Board (upon recommendation by the Special Committee), the Company Board again makes shall, and shall cause its Representatives to, for a period of at least three (3) calendar days following receipt by Purchaser of the determination Superior Proposal Notice (such time period, the “Notice Period”), negotiate with Purchaser and any Representative of Purchaser in good faith after consultation with its outside legal counsel (to the extent Purchaser desires to so negotiate) to permit Purchaser to propose amendments to the terms and financial advisors conditions of this Agreement and the Contemplated Transactions (a “Purchaser Proposal”); and (y) on the date that is no later than one (1) Business Day immediately following the last day of the Notice Period, and taking into account any adjustment or modification of Purchaser Proposal received during the terms hereof Notice Period, the Board (upon recommendation by the Special Committee) has again determined, if applicable, that the Parent proposes) that Superior Proposal causing the Acquisition Superior Proposal constitutes Determination remains a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted has again made a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, Determination; and (iiz) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received Superior Proposal did not arise from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring breach by the Company or any portion thereof of its Representatives of Section 6.3. The Company acknowledges and agrees that each successive modification to return the financial terms or destroy (other material terms of an Acquisition Proposal that is determined to be a Superior Proposal shall be deemed to constitute a new Superior Proposal for purposes of this Section 6.3(f) and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalfshall trigger a new Notice Period.
(g) Nothing contained in this Agreement will shall prohibit the Company or restrict the Company’s Board (acting through the Special Committee or otherwise) from effecting an Adverse Recommendation Change not involving disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or relating to an Acquisition Proposal from issuing a “stop, look and listen” statement as described in response to Rule 14d-9 pending disclosure of its position thereunder. If the Company issues such a material adverse development or change statement, then the time periods set forth in circumstances clauses “(iii)”, “(iv)” and “(v)” of Section 6.3(f) shall be four (4) Business Days (with respect to clauses “(iv)” and “(v)” thereof, inclusive of the Parent cure period contemplated by the proviso in Section 6.3(f), if any, that is permitted thereby) rather than the twenty-four (24) hours or the three (3) Business occurring Days set forth therein unless the otherwise applicable twenty-four (24) hours or arising three (3) Business Day period, as applicable, set forth therein has fully elapsed prior to the time of such statement. The Company may however issue such statement at any time. For the avoidance of doubt, this Section 6.3(g) does not alter the definition of a Change in Recommendation (other than the applicable time frames) or the consequences of a Change in Recommendation.
(h) Neither the Company nor the Board (acting through the Special Committee or otherwise), after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change Acceptance Time (or, if already madeSection 6.7 applies, the Expiration Date referenced therein), will reinstate its recommendation make a Change in favor Recommendation of the Merger and this Agreementkind described in Sections 6.3(f)(i), as so adjusted (ii) or modified(iii).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in 5.6.1 Subject to Section 6.2(d)5.6.2, from the date hereof until the Effective Time, the Company agrees that it shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the not authorize any Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s Subsidiary or any of their respective directors, officers, directors, investment bankers, attorneysemployees, accountants, financial consultants, legal counsel, advisors, agents, agents and other representatives (collectively, the “Company Representatives”) not to, (i) directly or indirectly initiateindirectly, take any action to (A) solicit, initiate or knowingly encourage, or facilitate (including by way of furnishing non-public information) encourage any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (iiB) participate or engage in any way in discussions or negotiations with, or furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person person that has made an Acquisition Proposal Proposal, (C) withdraw or modify the Company Recommendation in contemplation a manner adverse to Parent, (D) other than the Merger, approve or recommend any Acquisition Proposal, or (E) enter into any agreement or letter of an intent with respect to any Acquisition Proposal. Subject to Section 5.6.2, on the date hereof, the Company shall immediately cease and cause to be terminated any negotiations with any person conducted theretofore by the Company, the Company Subsidiaries or any Company Representative with respect to any Acquisition Proposal, and shall use its (and will cause the Company Representatives to use their) reasonable best efforts to require other parties thereto to promptly return or destroy in accordance with the terms of such agreement any confidential information previously furnished by the Company, the Company Subsidiaries or the Company Representatives thereunder.
Section 5.6.2 Notwithstanding anything to the immediately foregoing sentencecontrary contained in Section 5.6.1, at any time prior to obtaining the adoption of this Agreement by the Required Company Stockholders, so long as the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described is not in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a5.6.1(A), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parentbe permitted to:
(i) take, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing disclose to the Company’s stockholders stockholders, a position with respect to an Acquisition Proposal pursuant to any tender or exchange offer by a third party or amend or withdraw such a position in accordance with Rule 14d-9 or 14e-2(a) and Rule 14e-2 promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).Act;
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any if the Company has received an Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), from a third party and the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines effect a change in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make Recommendation or enter into an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person agreement with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which ;
(iii) effect a change in the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, Recommendation if the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely failure to do so would be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company ; or
(iv) participate in any adjustment discussions or modification of the terms hereof negotiations with, or provide any non-public information to, any person in response to a Notice of Material Development, and an Acquisition Proposal by any such proposed adjustment or modificationperson, if implemented, would reverse the determination of the Company Board determines that it make an Adverse Recommendation Changethere is a reasonable likelihood that such Acquisition Proposal would lead to a Superior Proposal; provided, then that the Company shall notify Parent in writing of such determination and Parent shall negotiate its intention to participate in good faith (during a period not exceeding three Business daysdiscussions or negotiations with, unless otherwise mutually agreed) or provide non-public information to, any person in response to an Acquisition Proposal; provided, however, that with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, foregoing the Company Board shall not make an Adverse Recommendation Change take any action until after the third Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board intends to take such action, including (orif such proposed action is in connection with receipt of a Superior Proposal) the material terms and conditions of such Superior Proposal (it being understood and agreed that, if already madeprior to taking any such action, will reinstate its recommendation the Company shall discuss with Parent and consider in favor good faith any changes to the terms of the Merger and this Agreement, as so adjusted Agreement proposed by Parent in response to such Superior Proposal or modifiedotherwise).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to Raindance agrees that it will not), and shall take such reasonable actions to will cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its directors, officers, directors, investment bankers, attorneys, accountants, financial advisors, agentsattorneys and accountants not to, and shall use its reasonable best efforts to cause its employees and other representatives agents not to (collectivelyit being understood that once Raindance discovers that any employee or other agent has engaged in activity that violates this Section 4.9(a), the “Representatives”) not toit shall promptly cause such employee or other agent to cease such activity), (i) directly or indirectly initiate, solicit, knowingly encourage, encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries or proposals with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) engage or participate in any negotiations concerning, (iii) provide any confidential or engage in discussions or negotiations with, furnish any non-public nonpublic information or data relating to any Company Entity or any Company Asset to, or provide access to the its properties, books books, records or records personnel to, (iv) have or participate in any discussions with, or (v) exempt from the restrictions contained in any Takeover Laws, including Section 203 of any Company Entity tothe DGCL, any Person that has made relating to any Acquisition Proposal; provided that, notwithstanding anything to the contrary contained in this Section 4.9 or elsewhere in this Agreement, in the event Raindance receives an unsolicited bona fide Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Voteto, but not after, the Company time this Agreement is adopted by the Raindance Stockholder Approval, and the Company’s Raindance's Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines Directors concludes in good faith that such proposal constitutes, Acquisition Proposal constitutes or is reasonably likely to lead to, result in a Superior Proposal, Raindance may, and (z) may permit its officers and Representatives to, furnish or cause to be furnished nonpublic information or data, provide access to its properties, books, records or personnel, exempt from the Company’s Board determines restrictions contained in good faithany Takeover Laws, after consultation with its outside legal counselincluding Section 203 of the DGCL, that the failure to Person submitting such Acquisition Proposal, modify, waive, amend or release any standstill, confidentiality or similar agreements, and participate in such negotiations or discussions or to furnish the extent that the Board of Directors of Raindance concludes in good faith (after consultation with outside counsel) that failure to take such information or data to such third party is likely to be inconsistent with the Company Board’s actions would violate its fiduciary duties under applicable Law; except provided further, that (1) prior to providing any nonpublic information permitted to be provided pursuant to the Company foregoing proviso, it shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Company than those contained terms currently in effect in the Confidentiality Agreement. Raindance will (i) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Persons other than West with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information previously furnished to such parties or their Representatives between January 1, 2005 and the date of this Agreement and (ii) except as provided above in this Section 4.4(a), not modify, waive, amend or release any such standstill, confidentiality agreement or similar agreements entered into with such third partyparties. Raindance shall promptly (within two days) advise West following receipt of any Acquisition Proposal and the substance thereof (including the identity of the Person making such Acquisition Proposal), and will keep West apprised of any related developments, discussions and negotiations on a current basis.
(b) If, in response to an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available solicited by Raindance and which did not otherwise result from a breach of Section 4.9(a) (an "Outside Proposal"), the Board of Directors of Raindance concludes in good faith (after consultation with outside counsel) that notwithstanding this Agreement and any concessions which may be offered by West in negotiations entered into pursuant to the Parentfollowing sentence, contemporaneously such Outside Proposal is a Superior Proposal the Board of Directors of Raindance may (subject to this and the following two sentences) terminate this Agreement (and concurrently with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained termination, if it so chooses, cause Raindance to enter into a letter of intent, agreement in this Section 6.2 will prohibit the Company principle, memorandum of understanding, merger, acquisition, purchase or the Company’s Board from taking and disclosing to the Company’s stockholders a position joint venture agreement or other agreement with respect to an Acquisition the Superior Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosurethat prompted such termination), in either case but only at a time that is prior to the extent required time this Agreement is adopted by applicable Lawthe Raindance Stockholder Approval and after the second business day following West's receipt of written notice advising West that the Board of Directors of Raindance is prepared to accept such Outside Proposal, including specifying the Company Board’s fiduciary duties; except material terms and conditions of such Outside Proposal and identifying the person making such Outside Proposal. If requested by West in response to a notice advising West that compliance the Board of Directors of Raindance is prepared to accept such Outside Proposal, during the two business day period referred to in the preceding sentence, Raindance shall, and shall cause its directors, officers, investment bankers, financial advisors, and attorneys to, negotiate in good faith with such rules will not permit the Company West to make an Adverse Recommendation Change other than such adjustments in accordance the terms and conditions of this Agreement as would enable the Board of Directors to proceed with Section 6.2(dthe transactions contemplated herein on such adjusted terms (any proposal from West based on such adjusted terms being referred to as the "Adjusted West Proposal").
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each . No withdrawal or modification of the Company, Directors' Recommendation or acceptance of an Outside Proposal shall change the Company’s Board, and each Company approval of the Raindance Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse of Directors for purposes of causing any Takeover Laws to any Buyer Entity), or publicly propose be inapplicable to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability transactions contemplated by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth Nothing contained in this Section 6.2, at any time prior to obtaining Agreement shall prevent Raindance or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), 1934 Act with respect to an Acquisition Proposal; provided, if such disclosure has the Company’s Board is permitted effect of withdrawing or modifying the Directors' Recommendation in a manner adverse to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a)West, whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by West shall have the right to terminate this Section 6.2(d))) is made Agreement to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as extent set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, Section 6.1(e) and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment withdrawal or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent must comply with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Section 4.4.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) No Target Entity shall, and in Section 6.2(d), the Company shall not (and it shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) its Representatives not to, (i) directly or indirectly indirectly, (a) solicit, initiate, solicit, knowingly encourage, or facilitate encourage (including by way of furnishing non-public informationproviding information or assistance), facilitate or induce any Acquisition Proposal, (b) participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any inquiries nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any offer or submission of, any proposal that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, (c) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (iid) participate approve, agree to, accept, endorse or engage in discussions recommend, or negotiations withpropose to approve, furnish agree to, accept, endorse or recommend any non-public information Acquisition Agreement contemplating or data otherwise relating to any Company Entity Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Target shall constitute a breach of this Section 7.2 by Target.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Target or any Company Asset toof its Representatives receives an unsolicited, or provide access to the properties, books or records of any Company Entity to, bona fide written Acquisition Proposal by any Person that has made an Acquisition Proposal or “Group” (as such term is defined in contemplation of an Acquisition Proposal. Notwithstanding Section 13(d) under the immediately foregoing sentence, Exchange Act) at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal Stockholders’ Meeting that did not result from or arise in connection with a breach of this Section 6.2(a7.2(a), whether by any Company Entity Target and its Representatives may, prior to (but not after) the Stockholders’ Meeting, take the following actions if the board of directors of Target (or any Representative committee thereof) has (as if all Company Entities and Representatives were bound by this Section 6.2(a)))i) determined, (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of in its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and judgment (z) the Company’s Board determines in good faith, after consultation with its Target’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to participate in take such negotiations or discussions or actions would cause it to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s violate its fiduciary duties under applicable Law; except that , and (1ii) the Company shall not deliver any non-public information obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such third party without first entering into a confidentiality agreement with such third party on Person or “Group” as the terms no less favorable to the Company than those contained in of the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position each provision with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(aBuyer: (A) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Boardfurnish information to, and each Company Board Committee shall not (iB) withdraw enter into discussions and negotiations with, such Person or withhold (or amend or modify in a manner adverse “Group” with respect to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any such bona fide written Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”)Proposal.
(c) Except as provided Promptly (but in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to causeno event more than 24 hours) each Company Entity’s Representatives not to, execute or enter into following receipt of any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), Acquisition Proposal or any letter of intent, term sheet, memorandum of understanding, request for nonpublic information or agreement in principle, (i) relating to or any inquiry that could reasonably be expected to lead to any Acquisition Proposal Proposal, Target shall advise Buyer in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (other than an Acceptable Confidentiality Agreement including, in circumstances contemplated each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the penultimate sentence Exchange Act) making any such Acquisition Proposal, request or inquiry), and Target shall as promptly as practicable provide to Buyer (i) a copy of Section 6.2(a))such Acquisition Proposal, request or inquiry, if in writing, or (ii) requiring a written summary of the Company material terms of such Acquisition Proposal, request or inquiry, if oral. Target agrees that it shall simultaneously provide to abandon, terminate, or fail to consummate the Merger Buyer any nonpublic information concerning Target or any Target Subsidiaries that may be provided (pursuant to Section 7.2(a)) to any other Person or “Group” in connection with any bona fide written Acquisition Proposal which has not previously been provided to Buyer. In addition, Target shall provide Buyer as promptly as practicable with notice setting forth all such information as is reasonably necessary to keep Buyer informed on a current basis in all material respects of the Transactionsall communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the foregoing set forth in this Section 6.2contrary, at any time prior to obtaining the Company Required VoteStockholders’ Meeting, and subject if Target has received a Superior Proposal (after giving effect to the Company’s compliance at all times with the provisions terms of any revised offer by Buyer pursuant to this Section 6.2 and Section 6.4(a7.2(d)), the board of directors of Target may terminate this Agreement (and concurrently with such termination cause Target to enter into an acquisition agreement with respect to an Acquisition any Superior Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines board of directors of Target has determined in good faith, after consultation with its outside legal counsel, that the failure to make take such an Adverse Recommendation Change is likely to action would be inconsistent with a violation of the Company Board’s directors’ fiduciary duties under applicable Law; provided, that the board of directors of Target may not take the actions set forth in this Section 7.2(d) unless:
(i) Target has complied in all material respects with this Section 7.2;
(ii) Target has provided prior written notice to Buyer at least three Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise Buyer that the board of directors of Target has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Target has and has caused its financial advisors and outside legal counsel to, negotiate with Buyer in good faith (to the extent Buyer desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Target) a Superior Proposal; and
(iv) subject the board of directors of Target has determined in good faith, after considering the results of such negotiations and giving effect to compliance with applicable Lawany proposals, amendments or modifications made or agreed to by Buyer, if any, that such Superior Proposal remains a Superior Proposal. If during the Company provides Notice Period any revisions are made to the Parent three Business Days’ prior Superior Proposal, Target shall deliver a new written notice to Buyer and shall comply with the requirements of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information this Section 7.2(d) with respect to such new written notice. In addition to the foregoing, Target shall not submit to the vote of its stockholders any Acquisition Proposal that is specified other than the Merger unless this Agreement shall be terminated in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation accordance with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)terms.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof)Target and Target Subsidiaries shall, the Company and Target shall direct its Representatives to, (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to immediately cease and terminate cause to be terminated any and all existing activities, discussions, discussions or negotiations with any parties Persons conducted heretofore with respect to any possible offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and , (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to prompt return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore previously furnished to such any Person by (other than Buyer and its Representatives) that has made or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting indicated an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such noticeAcquisition Proposal, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end not waive or amend any “standstill” provision or provisions of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel similar effect to which it is a party or of which it is a beneficiary and financial advisors (and taking into account shall strictly enforce any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)provisions.
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and in Section 6.2(d), the Company shall not (and shall cause the Company directors of it or its Subsidiaries to not)shall, and that it shall take such instruct and use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) its Subsidiaries’ Representatives not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage, encourage or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making of an Acquisition Proposal, (ii) participate in any discussions with or submission of, provide any proposal that constitutes, confidential information or would reasonably be expected data to lead to, any Person relating to an Acquisition Proposal, or (ii) participate or engage in discussions or any negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of concerning an Acquisition Proposal. , or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) approve or execute or enter into any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal (an “Acquisition Agreement”) or (iv) propose or agree to do any of the foregoing.
(i) Notwithstanding the immediately foregoing sentenceforegoing, at any time the Board of Directors of the Company shall be permitted, prior to obtaining the Company Required VoteStockholders Meeting to be held pursuant to Section 5.1, and subject to (A) compliance with the Company and the Company’s Board are permitted to take any actions described in clause (ii) other terms of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, 5.4 and (zB) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms having provisions that are no less favorable to the Company than those contained in the Confidentiality Agreements (provided that such agreement need not contain any standstill or similar provision prohibiting the making of an Acquisition Proposal), to engage in discussions and negotiations with, or provide any nonpublic information or data to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person first made after the date of this Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”that did not result from a material breach of this Section 5.4) and (2) subject to applicable Law, which the Board of Directors of the Company shall make available concludes in good faith (after consultation with outside legal counsel and financial advisors) constitutes or is reasonably likely to result in a Superior Proposal, if and only to the Parent any non-public information concerning any extent that the directors of the Company Entity conclude in good faith (after consultation with their outside legal counsel) that is made available failure to any other Person or group do so would reasonably be expected to result in connection with any actual or potential Acquisition Proposal that was not previously made available a breach of their duties to the Parent, contemporaneously Company. The Company shall provide Parent with a copy of any nonpublic information or data provided to a third party pursuant to the delivery of prior sentence prior to or substantially concurrently with furnishing such information to such third party (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case except to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company nonpublic information or data shall have been previously provided to make an Adverse Recommendation Change other than in accordance with Section 6.2(dParent).
(bii) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person that informs the Company or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal, or any inquiry from any Person seeking to have discussions or negotiations with such party relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Acquisition Proposal, inquiry or request and the terms and conditions of any inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or written correspondence, and/or a summary of the terms and conditions thereof if such inquiry, proposal or offer was not made in writing). The Company shall also promptly, and in any event within twenty-four (24) hours, notify Parent, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 5.4(b) and keep Parent reasonably informed of the status and terms of any such proposals, offers, discussions or negotiations on a reasonably current basis, including by providing a copy of all material documentation or written correspondence relating thereto. Notwithstanding anything to the contrary in this Agreement, the Company may contact any Person submitting an Acquisition Proposal after the date of this Agreement (that did not result from a material breach of this Section 5.4) to clarify and understand the terms of the Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal.
(iii) Except as provided in Section 6.2(d5.4(b)(iv) and in or Section 6.2(g5.4(b)(v), each neither the Board of Directors of the CompanyCompany nor any committee thereof shall (a) withhold, the Company’s Boardwithdraw, and each Company Board Committee shall not (i) withdraw modify or withhold (or amend or modify qualify in a any manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approveother party, or propose publicly to recommendwithhold, adoptwithdraw, modify or approvequalify in any manner adverse to the other party, the Company Board Recommendation, (b) fail to include the Company Board Recommendation in the Proxy Statement, (c) make or publicly propose to make any recommendation in connection with a tender offer or exchange offer commenced by a third party other than a recommendation against such offer or a customary “stop, look and listen” communication or (d) in the event an Acquisition Proposal has been publicly announced or publicly disclosed, fail to publicly reaffirm the Company Board Recommendation within five (5) Business Days of Parent’s written request that the Company do so (provided that a party shall be entitled to make such a written request for reaffirmation only once with respect to each Acquisition Proposal and once for each material amendment to each such Acquisition Proposal) (any action described in of the immediately foregoing clauses clause (ia), (b), (c) or this clause (iid), an a “Adverse Recommendation ChangeChange in Company Recommendation”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(div) Notwithstanding the foregoing set forth anything in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject Agreement to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a)contrary, with respect to an Acquisition Proposal, the Company’s Board is permitted of Directors of the Company may make a Change in Company Recommendation (and in the event that the Board of Directors of the Company determines such Acquisition Proposal to make an Adverse Recommendation Change be a Superior Proposal, in accordance with this Section 5.4, terminate this Agreement pursuant to Section 7.1(c)), in each case (including with respect to any such termination), if and only if (iA) a an unsolicited bona fide written Acquisition Proposal (that did not result from a material breach by the Company of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))5.4) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (iiB) the Company’s Board determines of Directors of the Company has concluded in good faith (after consultation with its outside legal counsel and financial advisors advisors) that such Acquisition Proposal constitutes a Superior Proposal, (iiiC) the Company’s Board determines of Directors of the Company has concluded in good faith, faith (after consultation with its outside legal counsel) that failure to do so would reasonably be expected to result in a breach of its duties to the Company, (D) four (4) Business Days (the “Notice Period”) shall have elapsed since the Company has given written notice to Parent advising Parent that the failure Company intends to make take such an Adverse Recommendation Change action and specifying in reasonable detail the reasons therefor, including the terms and conditions of any such Superior Proposal that is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice basis of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal proposed action (such notice, a “Notice of Acquisition ProposalRecommendation Change”), ) (it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect any amendment to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition term of such Superior Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent shall require a new Notice of Acquisition Proposal andRecommendation Change and a new Notice Period, if except that the four (4) Business Day Notice Period referred to in clause (D) above shall instead be equal to the longer of (1) three (3) Business Days or (2) the period remaining under the Notice Period under clause (D) above immediately prior to the delivery of such additional notice under this clause (D)), (E) during the Notice Period, the Company has not made an Adverse Recommendation Changeconsidered and, at the request of Parent, engaged in good faith discussions and subject to compliance negotiations with applicable LawParent regarding, an additional three Business Days following any adjustment or modification of the provision terms of such new Notice of Acquisition Proposalthis Agreement proposed by Parent, and (vF) at the end Board of Directors of the three-Business Day period described in Company, following the immediately foregoing clause (iv) (including any extension of such period required thereunder)Notice Period, the Company Board again makes the determination reasonably determines in good faith (after consultation with its outside legal counsel and financial advisors (counsel, and taking into account any adjustment or modification of the terms hereof that the Parent proposesof this Agreement proposed by Parent) that failure to do so would reasonably be expected to result in a breach of its duties to the Company.
(v) Notwithstanding anything in this Agreement to the contrary, in circumstances not involving or relating to an Acquisition Proposal constitutes Proposal, the Board of Directors of the Company may make a Superior Proposal Change in Company Recommendation if and only if (A) an Intervening Event shall have occurred, (B) the Board of Directors of the Company has first reasonably determined in good faith (after consultation with outside legal counsel) that the failure to make such Adverse a Change in Company Recommendation would reasonably be expected to result in a breach of its duties to the Company, (C) the Notice Period shall have elapsed since the Company has given a Notice of Recommendation Change is likely to be inconsistent with Parent advising that the Company Board’s fiduciary duties under applicable Law. If intends to take such action and specifying in reasonable detail the Parent proposes reasons therefor, including the facts and circumstances relating to the applicable Intervening Event in reasonable detail, (D) during the Notice Period, the Company has considered and, at the request of Parent, engaged in good faith discussions and negotiations with Parent regarding, any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such this Agreement proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiationsby P▇▇▇▇▇, and (iiE) promptly provide to Parent a detailed, written summary the Board of all Directors of the material termsCompany, provisionsfollowing the Notice Period, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent again reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith (after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Lawcounsel, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that of this Agreement proposed by the Parent proposes in writingother party) that failure to make a Change in Company Recommendation would reasonably be expected to result in a breach of its duties to the Company.
(vi) Nothing contained in this Section 5.4 shall prohibit the Company or its Subsidiaries from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement, including Section 7.1(c) or Section 7.1(d), as applicable; and provided, further that any such disclosure that addresses the approval, recommendation or declaration of advisability by the Board of Directors of the Company with respect to this Agreement or an Adverse Acquisition Proposal shall not be deemed to be a Change in Company Recommendation if the Board of Directors of the Company, in connection with such communication, publicly states that its recommendation with respect to this Agreement and the transactions contemplated hereby has not changed or expressly reaffirms the Company Board Recommendation, without disclosing any Change in Company Recommendation.
(c) The Company agrees that (i) it will and will cause its Subsidiaries, and its and their Representatives to, cease immediately and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal and (ii) except with respect to the Company and its Subsidiaries, it will not release any third party from, or waive any confidentiality provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is likely a party and will use reasonable efforts to enforce the confidentiality provisions of such agreements; provided that, if the Board of Directors of the Company determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would reasonably be expected to be inconsistent with the Company Board’s fiduciary directors’ duties under applicable Law. If , the Parent proposes Company may waive such standstill solely to the Company any adjustment or modification extent necessary to permit the applicable Person (if it has not been solicited in material violation of this Section 5.4) to make, on a confidential basis to the Board of Directors of the terms hereof Company, an Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Acquisition Proposal to Parent, in response each case as contemplated by this Section 5.4 so long as the Company promptly notifies Parent thereof after granting any such waiver. The Company agrees that it will use its reasonable best efforts to promptly inform its and its Subsidiaries’ respective Representatives of the obligations undertaken in this Section 5.4.
(d) The Company shall not submit to the vote of its stockholders any Acquisition Proposal other than the Merger and the other transactions contemplated hereby prior to the termination of this Agreement.
(e) For purposes of this Agreement, “Superior Proposal” means a Notice bona fide written Acquisition Proposal that the Board of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination Directors of the Company Board that it make an Adverse Recommendation Changeconcludes in good faith, then after consultation with its financial advisors and outside legal counsel, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal (including any break-up fees, expense reimbursement provisions, conditions to consummation and certainty, and speed of Closing), (i) is more favorable to the stockholders of the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to than the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and transactions contemplated by this Agreement, as so adjusted or modified)and (ii) is reasonably likely to receive all required governmental approvals on a timely basis and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term Acquisition Proposal shall have the meaning assigned to such term in Article IX, except that the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be a references to “75%.”
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) No Alliance Entity shall, and in Section 6.2(d), the Company shall not (and it shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) its Representatives not to, (i) directly or indirectly indirectly, (a) solicit, initiate, solicit, knowingly encourage, or facilitate encourage (including by way of furnishing non-public informationproviding information or assistance), facilitate or induce any Acquisition Proposal, (b) participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any inquiries nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any offer or submission of, any proposal that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, (c) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (iid) participate approve, agree to, accept, endorse or engage in discussions recommend, or negotiations withpropose to approve, furnish agree to, accept, endorse or recommend any non-public information Acquisition Agreement contemplating or data otherwise relating to any Company Entity Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Alliance shall constitute a breach of this Section 7.2 by Alliance.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Alliance or any Company Asset toof its Representatives receives an unsolicited, or provide access to the properties, books or records of any Company Entity to, bona fide written Acquisition Proposal by any Person that has made an Acquisition Proposal or “Group” (as such term is defined in contemplation of an Acquisition Proposal. Notwithstanding Section 13(d) under the immediately foregoing sentence, Exchange Act) at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal Shareholders’ Meeting that did not result from or arise in connection with a breach of this Section 6.2(a7.2(a), whether by any Company Entity Alliance and its Representatives may, prior to (but not after) the Shareholders’ Meeting, take the following actions if the board of directors of Alliance (or any Representative committee thereof) has (as if all Company Entities and Representatives were bound by this Section 6.2(a)))i) determined, (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of in its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and judgment (z) the Company’s Board determines in good faith, after consultation with its Alliance’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to participate in take such negotiations or discussions or actions more likely than not would cause it to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s violate its fiduciary duties under applicable Law; except that , and (1ii) the Company shall not deliver any non-public information obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such third party without first entering into a confidentiality agreement with such third party on Person or “Group” as the terms no less favorable to the Company than those contained in of the Confidentiality Agreement is in each provision with respect to WSFS: (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”A) and furnish information to (2) subject to applicable Law, the Company but only if Alliance shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of have provided such information to WSFS prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position “Group” with respect to an such bona fide written Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”)Proposal.
(c) Except as provided Promptly (but in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to causeno event more than 24 hours) each Company Entity’s Representatives not to, execute or enter into following receipt of any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), Acquisition Proposal or any letter of intent, term sheet, memorandum of understanding, request for nonpublic information or agreement in principle, (i) relating to or any inquiry that could reasonably be expected to lead to any Acquisition Proposal Proposal, Alliance shall advise WSFS in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (other than an Acceptable Confidentiality Agreement including, in circumstances contemplated each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the penultimate sentence Exchange Act) making any such Acquisition Proposal, request or inquiry), and Alliance shall as promptly as practicable provide to WSFS (i) a copy of Section 6.2(a))such Acquisition Proposal, request or inquiry, if in writing, or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any a written summary of the Transactionsmaterial terms of such Acquisition Proposal, request or inquiry, if oral. Alliance shall provide WSFS as promptly as practicable with notice setting forth all such information as is necessary to keep WSFS informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the foregoing set forth in this Section 6.2contrary, at any time prior to obtaining the Company Required VoteShareholders’ Meeting, and subject if Alliance has received a Superior Proposal (after giving effect to the Company’s compliance at all times terms of any revised offer by WSFS pursuant to this Section 7.2(d)), the board of directors of Alliance may, in connection with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, make a Change in the Alliance Recommendation (iii) including, for the Company’s Board determines avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the board of directors of Alliance has determined in good faith, after consultation with its outside legal counsel, that the failure to make take such an Adverse Recommendation Change is action more likely to than not would be inconsistent with a violation of the Company Board’s directors’ fiduciary duties under applicable Law; provided, that the board of directors of Alliance may not take the actions set forth in this Section 7.2(d) unless:
(i) Alliance has complied in all material respects with this Section 7.2;
(ii) Alliance has provided prior written notice to WSFS at least four Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise WSFS that the board of directors of Alliance has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Alliance has and has caused its financial advisors and outside legal counsel to, negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Alliance) a Superior Proposal; and
(iv) subject the board of directors of Alliance has determined in good faith, after considering the results of such negotiations and giving effect to compliance with applicable Lawany proposals, amendments or modifications made or agreed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal. If during the Company provides Notice Period any revisions are made to the Parent three Business Days’ prior Superior Proposal, Alliance shall deliver a new written notice to WSFS and shall comply with the requirements of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information this Section 7.2 with respect to such Acquisition Proposal that is specified new written notice. Notwithstanding any Change in Section 6.2(e); except thatthe Alliance Recommendation, if there are any material revisions this Agreement shall be submitted to the Acquisition Proposal (relative shareholders of Alliance at the Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Alliance of such obligation; provided, that if the terms board of the Acquisition Proposal as set forth directors of Alliance shall have effected a Change in the Notice of Acquisition Proposal as provided to the Parent)Alliance Recommendation, then the Company must provide board of directors of Alliance, in connection with the submission of this Agreement to the Parent a new Notice shareholders of Acquisition Proposal and, if Alliance may submit this Agreement without recommendation (although the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end resolution adopting this Agreement as of the three-Business Day period described date hereof may not be rescinded), in which event the board of directors of Alliance may communicate the basis for its lack of a recommendation to the shareholders of Alliance in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment Proxy Statement or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Lawan appropriate amendment or supplement thereto. If the Parent proposes In addition to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposalforegoing, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent Alliance shall negotiate in good faith with the Parent to implement such adjustment or modification not submit to the terms hereof and, upon implementation vote of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or shareholders any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and other than the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the ParentMerger.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alliance Bancorp, Inc. Of Pennsylvania)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such reasonable actions to will cause (its Subsidiaries and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage, encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries or proposals with respect to, (ii) engage or the making participate in any negotiations with any person concerning, or submission of(iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any proposal that constitutes, or would reasonably be expected to lead person relating to, an any Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating except to any Company Entity or any Company Asset to, or provide access to notify such person of the properties, books or records existence of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) provisions of this Section 6.2(a) with respect 6.13(a); provided, that, prior to a third party if (w) the date of the Company has received a Meeting, in the event the Company receives an unsolicited bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a6.13(a), whether by any Company Entity it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or any Representative cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors, the Company’s Board determines in good faith ) that (1) such proposal constitutes, Acquisition Proposal constitutes or is reasonably likely to lead to, to a Superior Proposal, Proposal and (z2) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate take such actions would be reasonably likely to result in such negotiations a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information or discussions or data permitted pursuant to furnish the foregoing proviso, the Company shall have provided such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company Parent and shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such Agreement, which confidentiality agreement shall not provide such person with such third partyany exclusive right to negotiate with the Company. The Company will, an “Acceptable Confidentiality Agreement”) and (2) will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable Lawlaw, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (x) enforce any confidentiality, standstill or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent) pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the such agreement. The Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
promptly (b) Except as provided in Section 6.2(d) and in Section 6.2(g), each any event within twenty-four (24) hours) advise Parent following receipt of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that inquiry which could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials substance thereof (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) terms and conditions of and the identity of the Person person making such inquiry or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status copies of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release , and will keep Parent apprised of any third party fromrelated developments, discussions and negotiations on a current basis, including any amendments to or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf revisions of the Parentterms of such inquiry or Acquisition Proposal.
(fb) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing As used in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).,
Appears in 1 contract
Acquisition Proposals. (a) Except as provided From the date of this Agreement until the Effective Time, or, if earlier, the termination of this Agreement in this Section 6.2(a) and in Section 6.2(d)accordance with its terms, the Company shall not (and shall cause will not, nor will it permit any of its subsidiaries to, nor will it authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company Subsidiaries to not)or any of its subsidiaries to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourageencourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing furnish to any person any non-public information) information in respect of, or knowingly take any other action to facilitate, any Acquisition Proposal or any inquiries with respect to, or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal, provided, however, that nothing contained in this Section 6.5(a) shall prohibit the Company Board from furnishing any information to, or (ii) participate or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide Acquisition Proposal if, or provide access and only to the properties, books or records of any Company Entity to, any Person extent that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (wA) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did Stockholder Meeting shall not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))have occurred, (xB) the Company gives Board, after consultation with outside legal counsel, determines in good faith that the Parent failure to take such action would be inconsistent with its fiduciary duties to the notice required by Section 6.2(e)Company's stockholders under applicable Law, as such duties would exist in the absence of any limitation in this Agreement, (yC) after receiving the advice of its financial advisors, the Company’s Company Board determines in good faith that such proposal constitutes, or Acquisition Proposal is reasonably likely to lead toto a transaction that, a Superior Proposalif accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and (z) the Company’s Board determines believes in good faith, after consultation with its outside legal counselFinancial Advisor, based on the information available to the Company Board at the time, that the failure to participate such Acquisition Proposal would, if consummated, result in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less transaction more favorable to the Company Company's stockholders than those contained in the Confidentiality Agreement Merger (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential more favorable Acquisition Proposal that was not previously made available being referred to the Parent, contemporaneously with the delivery of such information to (or herein as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not"Superior Proposal"), and shall take reasonable actions (D) prior to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not furnishing any information to, execute or enter entering into discussions or negotiations with any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or person that could reasonably be expected to lead to any Acquisition Proposal (other than makes an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an unsolicited bona fide Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if Company (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(ax), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not)First Century will, and shall take such reasonable actions to will cause (each of its Subsidiaries to, and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and their respective officers, directors, investment bankersand representatives (including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) to, attorneysimmediately cease and cause to be terminated any existing solicitations, accountantsdiscussions, financial advisorsor negotiations with any Person concerning an Acquisition Proposal (as defined in Section 5.06(e)). During the period from the date of this Agreement through the Effective Time, agentsFirst Century shall not terminate, amend, modify, or waive any material provision of any confidentiality or similar agreement to which First Century or any of its Subsidiaries is a party (other than any involving First Internet).
(b) Except as permitted in this Section 5.06, First Century shall not, and other shall cause its Subsidiaries and any of their respective directors, officers, and representatives (collectively, the “Representatives”including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) not to, (i) directly or indirectly solicit, initiate, solicit, or knowingly encourageencourage or facilitate, or take any other action designed to, or that could reasonably be expected to, facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) engage or participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, with any Person that has made an Acquisition Proposal or in contemplation of regarding an Acquisition Proposal. Notwithstanding , except in each case as to notify such Person of the immediately foregoing sentenceexistence of the provisions of this Section 5.06; provided, however, that, at any time prior to obtaining the Company Required Voteapproval of the Merger by First Century’s shareholders, if First Century receives a bona fide Superior Proposal that the Company and the Company’s First Century Board are permitted to take any actions described determines in clause good faith (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take the foregoing actions would be reasonably likely to result in a violation of its fiduciary duties under applicable Law, First Century may furnish, or cause to be furnished, non-public information with respect to First Century and its Subsidiaries to the Person who made such Superior Proposal and may participate in discussions and negotiations regarding such proposal if prior to taking such action, First Century has used its commercially reasonable efforts to enter into a confidentiality agreement with respect to such Superior Proposal on terms no less favorable to First Century than the confidentiality agreement between First Century and First Internet and that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(b) by any representative (including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) of First Century or its Subsidiaries shall be a breach of this Section 5.06 by First Century.
(c) Neither the First Century Board nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw, or modify in a manner adverse to First Internet or propose to withdraw or modify in a manner adverse to First Internet (or take any action inconsistent with) the recommendation by the First Century Board or any such committee of this Agreement or the Merger, or approve or recommend, or propose to recommend, the Company’s Board determines in good faith that such proposal constitutesapproval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit First Century or First Century Bank to 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 (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of First Century’s shareholders to approve the Merger, the First Century Board may, in response to a Superior Proposal, and (z) effect an Adverse Recommendation Change, provided, that the Company’s First Century Board determines in good faith, after consultation with its outside legal counselcounsel and financial advisors, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is do so would be reasonably likely to be inconsistent result in a breach of its fiduciary duties to the shareholders of First Century under applicable Law, and provided, further, that the First Century Board may not effect such an Adverse Recommendation Change unless (A) the First Century Board shall have first provided prior written notice to First Internet (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new ten (10) business day period) and (B) First Internet does not make, within ten (10) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the First Century Board (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the Company First Century Board’s fiduciary duties to the shareholders of First Century under applicable Law; except that . First Century agrees that, during the ten (110) the Company business day period prior to its effecting an Adverse Recommendation Change, First Century and its officers, directors, and representatives shall not deliver negotiate in good faith with First Internet and its officers, directors, and representatives regarding any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable revisions to the Company than those contained terms of the transactions contemplated by this Agreement proposed by First Internet.
(d) In addition to the obligations of First Century set forth in the Confidentiality Agreement paragraphs (any such confidentiality agreement with such third partya), an “Acceptable Confidentiality Agreement”(b) and (c) of this Section 5.06, First Century shall as promptly as possible, and in any event within two (2) subject business days after First Century first obtains knowledge of the receipt thereof, advise First Internet orally and in writing of (i) any Acquisition Proposal or any request for information that First Century reasonably believes could lead to applicable Law, the Company shall make available to the Parent or contemplates an Acquisition Proposal or (ii) any non-public information concerning any Company Entity that is made available inquiry First Century reasonably believes could lead to any Acquisition Proposal, along with the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or group in request or inquiry. In connection with any actual such Acquisition Proposal, request, or potential Acquisition Proposal that was not inquiry, if there occurs or is presented to First Century any offer, material change, modification, or development to a previously made available to the Parentoffer, contemporaneously with the delivery letter of such information to intent, or any other material development, First Century (or its outside counsel) shall (A) advise and confer with First Internet (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto, and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry, and (B) promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company upon receipt or the Company’s Board from taking delivery thereof provide First Internet with true, correct, and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 complete copies of any document or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)communication related thereto.
(be) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee For purposes of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any “Acquisition Proposal (any action described in the immediately foregoing clauses Proposal” shall mean (i) any inquiry, proposal, or offer from any Person or group of Persons (ii), an “Adverse Recommendation Change”).
(cother than as contemplated by this Agreement) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not relating to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to to, any Acquisition Proposal direct or indirect acquisition or purchase, in one transaction or a series of transactions, of (other than an Acceptable Confidentiality Agreement in circumstances contemplated in A) assets or businesses that constitute 20% or more of the penultimate sentence revenues, net income, or assets of Section 6.2(a))First Century and its Subsidiaries, taken as a whole, or (B) 20% or more of any class of equity securities of First Century or any of its Subsidiaries; (ii) requiring the Company to abandonany tender offer or exchange offer that, terminateif consummated, would result in any Person beneficially owning 20% or more of any class of equity securities of First Century or any of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, or fail similar transaction involving First Century, First Century Bank, or any of its other Subsidiaries pursuant to consummate which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of First Century, First Century Bank, or any of First Century’s other Subsidiaries or of any resulting parent company of First Century or First Century Bank; or (iv) any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or any that could reasonably be expected to dilute materially the benefits to First Internet of the Transactions.
(d) Notwithstanding transactions contemplated hereby, other than the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions transactions contemplated hereby. For purposes of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice5.06, a “Notice of Acquisition Proposal”), it being understood that Person” shall include a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Personnatural person, or any inquirylegal, discussionscommercial, or negotiations with respect to any Acquisition ProposalGovernmental Authority, and the material terms of such requestincluding, Acquisition Proposala corporation, inquirygeneral partnership, discussionsjoint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is acting in a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentrepresentative capacity.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in expressly permitted by this Section 6.2(a) 6.4, until the Effective Time or, if earlier, the termination of this Agreement pursuant to and in accordance with Section 6.2(d8.3(a), the Company shall not (not, and shall cause the Company Subsidiaries to not)not to, and shall take such reasonable actions to cause (not authorize or permit its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not Subsidiaries’ Representatives to, (i) directly or indirectly initiateindirectly, solicit, knowingly encourageinitiate, or knowingly take any action to facilitate (including by way or encourage the submission of furnishing non-public information) any inquiries with respect to, Alternative Proposal or the making or submission of, of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Alternative Proposal, or, subject to this Section 6.4(a) or Section 6.4(b): (i) conduct or engage in any discussions or negotiations with, disclose or afford access to any non-public information relating to the Company or any Company Subsidiary to, or knowingly assist, participate in, knowingly facilitate, or knowingly encourage any effort by, any third party that is seeking to make, or has made, any Alternative Proposal; (ii) except where the Company Board (or a committee thereof) makes a good faith determination, after consultation with outside legal counsel and its financial advisor, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any Company Subsidiaries; or (iii) enter into any agreement, letter of intent, term sheet or other Contract relating to any Alternative Proposal (other than each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.4, the Company Board shall not effect a Company Adverse Recommendation Change. Except as expressly permitted by this Section 6.4, until the Effective Time, or, if earlier, the termination of this Agreement pursuant to and in accordance with Section 8.3(a), the Company shall, and shall cause the Company Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Alternative Proposal, and the Company shall use its commercially reasonable efforts to cause (and shall send written notice demanding that) any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any Company Subsidiary that was furnished by or on behalf of the Company and the Company Subsidiaries to return or destroy all such information.
(b) Notwithstanding the foregoing in this Section 6.4, prior to the receipt of the Company Stockholder Approval, the Company Board (or a committee thereof), directly or indirectly through any Representative, may, subject to Section 6.4(c): (i) participate in negotiations or discussions with any third party, that has made (and not withdrawn) a bona fide Alternative Proposal in writing that was not solicited in violation of Section 6.4(a) that the Company Board (or a committee thereof) believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected to result in a Superior Proposal; (ii) enter into, and thereafter furnish to such third party non-public information relating to the Company or any Company Subsidiaries pursuant to, an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement in circumstances contemplated in (a copy of such third party non-public information (to the penultimate sentence of Section 6.2(a)), or (ii) requiring extent such non-public information has not been previously made available by the Company to abandon, terminate, or fail Parent) and such Acceptable Confidentiality Agreement shall be provided to consummate the Merger or any Parent substantially contemporaneously); (iii) following receipt of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Voteand on account of a Superior Proposal, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 6.4(d) and Section 6.4(a6.4(f), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an a Company Adverse Recommendation Change if or terminate this Agreement pursuant to and in accordance with Section 8.3(a); or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but, in each case referred to in the foregoing clauses (i) a written Acquisition Proposal through (that did not result from a breach of Section 6.2(aiv), whether by any Company Entity or any Representative (as only if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by Board (or a third party, and such Acquisition Proposal is not withdrawn, (iicommittee thereof) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law or in violation of any Order of a court of competent jurisdiction. Nothing contained herein shall prevent the Company Board (or a committee thereof) from disclosing to the Company’s stockholders a position under Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal, if the Company Board (or a committee thereof) determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law; provided, that, any such disclosure that would otherwise constitute a Company Adverse Recommendation Change shall only be made in accordance with Section 6.4(d) or Section 6.4(e), as applicable.
(c) Neither the Company Board nor any committee thereof shall take any of the actions referred to in clauses (i) through (iv) of Section 6.4(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (and in no event later than one Business Day) after it obtains (i) knowledge of the receipt by the Company (or any of its Representatives) of any Alternative Proposal, (ii) any inquiry that would reasonably be expected to lead to an Alternative Proposal, (iii) any request for non-public information relating to the Company or any Company Subsidiary or for access to the business, properties, assets, books, or records of the Company or any Company Subsidiaries by any third party in connection with an Alternative Proposal. In such notice, the Company shall identify the third party making, and the material terms and conditions of, any such Alternative Proposal, indication or request. The Company shall keep Parent reasonably informed of the status and material terms of any such Alternative Proposal, indication or request, including any material amendments or material proposed amendments as to price and other material terms thereof.
(d) Except as expressly permitted by this Section 6.4, neither the Company Board or any committee thereof shall effect a Company Adverse Recommendation Change, enter into a Company Acquisition Agreement or terminate this Agreement pursuant to Section 8.3(a). Notwithstanding the foregoing, at any time prior to the receipt of the Company Stockholder Approval, the Company Board (or any committee thereof) may effect a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.3(a) and enter into a Company Acquisition Agreement, if: (i) the Company notifies Parent, in writing, at least four Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or terminating the Agreement pursuant to Section 8.3(a) and entering into a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal (which notice shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall state expressly that the Company has received an Alternative Proposal that the Company Board (or a committee thereof) has determined in good faith, after consulting with outside legal counsel and its financial advisor, constitutes a Superior Proposal and that the Company Board (or a committee thereof) intends to effect a Company Adverse Recommendation Change; (ii) the Company attaches to such notice the most current version of the proposed agreement reflecting the Superior Proposal and any material documents related thereto, and summarizes in reasonable detail any material terms and conditions of such Superior Proposal that are not reflected in the proposed agreement with respect to such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) during the Superior Proposal Notice Period, the Company negotiates with Parent in good faith, and causes its Representatives to negotiate with Parent in good faith, to make such adjustments in the terms and conditions of this Agreement so that such Alternative Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes in good faith to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including any revision in price, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three Business Days remain in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company Board (or a committee thereof) determines in good faith, after consulting with outside legal counsel and its financial advisor, that such Alternative Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Superior Proposal Notice Period to the terms and conditions of this Agreement.
(e) Notwithstanding anything to the contrary in Section 6.4(a)-(d), but subject to Section 6.4 and the last sentence of this Section 6.4(e), prior to the receipt of the Company Stockholder Approval, the Company Board (or a committee thereof) may effect a Company Adverse Recommendation Change if: (i) an Intervening Event occurs, (ii) the Company Board (or such committee) determines in good faith, after consulting with outside legal counsel and its financial advisor that the failure to make effect such an Company Adverse Recommendation Change is likely to would be inconsistent with the Company Board’s its fiduciary duties under applicable Law, (iviii) subject prior to compliance with applicable Law, effecting the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Lawthe Company promptly notifies Parent, an additional three in writing, at least two Business Days following (the provision “Company Adverse Recommendation Notice Period”) before taking such action of the Company Board’s (or such new committee’s) intent to consider such action (which notice shall not, by itself, constitute a Company Adverse Recommendation Change), and which notice shall include a reasonably detailed description of the underlying facts giving rise to the Intervening Event, and the reasons the Company Board (or such committee) proposes to take such action; (iv) the Company shall, and shall cause its Representatives to, during the Company Adverse Recommendation Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of Acquisition Proposalthis Agreement so that the underlying facts giving rise to the Intervening Event, and the reasons the Company Board (or such committee) proposes to take such action, cease to constitute circumstances causing the Company Board to propose making a Company Adverse Recommendation Change, if Parent, in its discretion, proposes in good faith to make such adjustments; and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination (or such committee) determines in good faith faith, after consultation consulting with its outside legal counsel and its financial advisors (advisor and taking into account any adjustment or modification of adjustments made by Parent during the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and Company Adverse Recommendation Notice Period, that the failure to make effect such Company Adverse Recommendation Change is likely to would be inconsistent with the Company Board’s its fiduciary duties under applicable Law. If the Parent proposes The Company acknowledges and hereby agrees that any Company Adverse Recommendation Change effected (or proposed to be effected) in response to or in connection with any Alternative Proposal may be made solely and exclusively pursuant to Section 6.4(d) only, and may not be made pursuant to this Section 6.4(e), and any Company Adverse Recommendation Change may only be made pursuant to this Section 6.4 and no other provisions of this Agreement. For purposes of this Agreement, an “Intervening Event” means any event, change, effect, development or occurrence, or any consequence thereof, that becomes known to the Company any adjustment Board after the date of this Agreement that (i) was not known, (or modification if known, the consequences of the terms hereof in response which were not reasonably foreseeable), to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that as of or prior to the Acquisition Proposal constituted date of this Agreement and did not result from a Superior Proposal, then breach of this Agreement by the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide does not relate to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition involve an Alternative Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) The Company and in Section 6.2(d)its Subsidiaries will not, the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s directly or indirectly through their respective officers, directors, investment bankersemployees, attorneys, accountants, financial advisors, representatives and agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicitfacilitate, knowingly encourage, encourage or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or solicit the making or submission of, of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, Proposal (as hereinafter defined) or (ii) participate or except as permitted below, engage in negotiations or discussions or negotiations with, or furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of third party relating to an Acquisition Proposal. Notwithstanding anything to the immediately foregoing sentencecontrary contained in this Agreement, at any time prior to obtaining the Company Required Vote, approval of the Merger by the Company's stockholders the Company and the Company’s Board are permitted to take (i) may participate in negotiations or discussions (including, as a part thereof, making any actions described in clause (ii) of this Section 6.2(acounterproposal) with respect or furnish information to a any third party if (w) the Company has received that delivers a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) to the Company gives which was not solicited or encouraged after the Parent date hereof if the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such discussions or negotiations or discussions or to furnish such information or data could reasonably be expected to such third party is likely to be inconsistent with constitute a breach of the Company Board’s 's fiduciary duties under applicable Law; except that law and (1ii) without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information be permitted to (or as promptly as practicable after such information is delivered tox) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking take and disclosing disclose to the Company’s 's stockholders a position with respect to an the Merger or another Acquisition Proposal Proposal, or amend or with- draw such position, pursuant to Rule Rules 14d-9 or 14e-2(a) promulgated and 14e-2 under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to (y) make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject disclosure to the Company’s compliance at all times with 's stockholders, in each case if the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make take such an Adverse Recommendation Change is likely action could reasonably be expected to be inconsistent with constitute a breach of the Company Board’s 's fiduciary duties under under, or otherwise violate, applicable Lawlaw. The Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation (iv"AES") subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information conducted heretofore with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(eb) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the The Company shall (i) promptly advise Parent in writing of any request for non-public information inquiries or any proposals relating to an Acquisition Proposal received from and any Person, or any inquiry, discussions, or negotiations with respect actions taken pursuant to any Acquisition Proposal, and Section 6.2(a) (including the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) thereof and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company other parties involved).
(c) Any action by the Board pursuant to the second sentence of Section 6.2(a) shall keep not change the Parent reasonably informed approval of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person Board with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request this Agreement for purposes of or on behalf Section 203 of the ParentDGCL.
(fd) Immediately after the execution and delivery hereofFor purposes of this Agreement, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible "Acquisition Proposal. The Company " shall mean any proposal made by a third party relating to (i) take a merger, recapitalization, share exchange, consolidation, business combination, sale of shares of capital stock or securities convertible into or exercisable or exchangeable for capital stock, tender offer or exchange offer or similar transaction involving the necessary steps to promptly inform the Representatives involved in the Transactions Company including, without limitation, any single or multi-step transaction or series of the obligations undertaken in Section 6.2(a) and related transactions or, (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration the acquisition of acquiring any material portion of the business or assets of the Company and its Subsidiaries or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end any public announcement of a proposal, plan or intention to do any of the three-Business Day period described foregoing, in each case other than the transactions contemplated by this Agreement and other than the transactions related to the Company's disposition of its interest in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with Tiger Bay project partnership to Florida Power Corporation or its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)affiliates.
Appears in 1 contract
Sources: Merger Agreement (NGC Corp)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) NTI GP and in Section 6.2(d)NTI shall, the Company shall not (and they shall cause the Company Subsidiaries to not)their respective Subsidiaries, and shall take such use reasonable actions best efforts to cause (their respective Representatives, of NTI GP and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not NTI to, (i) immediately cease and terminate any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to or that could reasonably be expected to lead to an Acquisition Proposal and (ii) request such Person to promptly return or destroy all confidential information concerning NTI and its Subsidiaries.
(b) Neither NTI GP nor NTI shall, and they shall cause their respective Subsidiaries, and shall use reasonable best efforts to cause their respective Representatives, not to, directly or indirectly indirectly, (i) initiate, solicit, knowingly encourage, encourage or facilitate (including by way of furnishing non-public information) any inquiries with respect toregarding, or the making or submission of, of any proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, or (ii) conduct or participate or engage in any discussions or negotiations withregarding any Acquisition Proposal, or (iii) furnish to any Person any non-public information or data relating to any Company Entity NTI or any Company Asset to, of its Subsidiaries or provide afford access to the business, properties, assets, or, except as required by Law or the NTI Partnership Agreement, books or records of NTI or any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposalits Subsidiaries. Notwithstanding the immediately foregoing sentenceforegoing, at any time prior to obtaining the Company Required VoteNTI Unitholder Approval, the Company and NTI GP Conflicts Committee may take the Company’s Board are permitted to take any actions described in clause clauses (ii) and (iii) of this Section 6.2(a6.6(b) with respect to any Person that makes a third party if (w) the Company has received a bona fide unsolicited written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative 6.6(b) (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition ProposalReceiving Party”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereofif (A) the NTI GP Conflicts Committee, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof advisors, determines in good faith that the Parent proposes) that the such Acquisition Proposal constitutes or is likely to result in a Superior Proposal and that the failure to make take such Adverse Recommendation Change is likely to action would be inconsistent with the Company Board’s fiduciary its duties under the NTI Partnership Agreement or applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and (B) prior to furnishing any such proposed adjustment or modificationnon-public information to such Receiving Party, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company NTI receives from such Receiving Party an executed Confidentiality Agreement. NTI GP and Parent NTI shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in all events within 24 hours) provide to WNR a copy of such Confidentiality Agreement and shall provide to WNR any non-public information with respect to NTI and its Subsidiaries that was not previously provided or made available to WNR prior to or substantially concurrent with providing or making available such non-public information to such other Person. NTI GP and NTI shall, as promptly as practicable (and in any event within 24 hours after the Company’s receipt thereofhours), the Company shall (i) advise Parent WNR in writing of any request for non-public information or any Acquisition Proposal received from any Person, including the identity of such Person, or any inquiry, discussions, inquiry or request for discussions or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, Proposal or inquiry, discussionsas well as the identity of the Person making such request, proposal or negotiationsinquiry. NTI GP and NTI shall, as promptly as practicable (and (ii) promptly in all events within 24 hours), provide to Parent a detailedWNR copies of any written materials received by NTI GP, written summary NTI or any of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives their Subsidiaries or Representatives in connection with any Acquisition Proposal (or, at of the Company’s election, a copy thereof) foregoing and the identity of the Person or group making any such request, Acquisition Proposal, Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company inquiry.
(c) NTI GP and NTI shall keep the Parent reasonably WNR fully informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material developments regarding or changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended Acquisition Proposal on a reasonably current basis (and in all events within 24 hours of such material development or additional documents received from or provided to change). NTI GP and NTI agree that they and their Subsidiaries will not enter into any Confidentiality Agreement with any Person that prohibits NTI GP or NTI or any of their Subsidiaries from providing any information to WNR in accordance with respect Section 6.5 or this Section 6.6. NTI GP and NTI will use reasonable best efforts to such Acquisition Proposal). The Company enforce (and shall not release any third party from, amend or waive any provisions material terms of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce ) any such agreement at the request of or on behalf of the ParentWNR.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such reasonable actions to will cause (its Subsidiaries and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageinduce, encourage or facilitate (including by way of furnishing non-public information) any inquiries or proposals with respect to, or the making or submission of, to any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or engage in discussions or negotiations with, furnish any non-public nonpublic information or data to any person (other than Parent, the Bank and their Representatives in their capacity as such) concerning any Acquisition Proposal or (iv) have or participate in any discussions with any person (other than Parent, the Bank and their Representatives in their capacity as such) relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding , except, for purposes of this clause (iv), (x) the immediately foregoing sentence, at any time prior to obtaining initial discussion in which the Company Required Votereceives the Acquisition Proposal, the Company and the Company’s Board are permitted to take any actions described in clause so long as such discussion does not violate clauses (i), (ii) or (iii), or (y) to notify such person of the existence of the provisions of this Section 6.2(a) with respect 6.12(a); provided that, for purposes of clause (iii), prior to a third party if (w) the date of the Company has received a Meeting, in the event the Company receives an unsolicited bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a6.12(a), whether by any Company Entity it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or any Representative cause to be furnished nonpublic information or data and participate in discussions referenced in clause (as if all Company Entities and Representatives were bound by this Section 6.2(a))), iv) to the extent that its Board of Directors concludes in good faith (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its outside counsel, and with respect to financial advisorsmatters, the Company’s Board determines in good faith its financial advisor) that (A) such proposal constitutes, Acquisition Proposal constitutes or is reasonably likely to lead to, to a Superior Proposal, Proposal and (zB) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate take such actions would result in such negotiations a violation of its fiduciary duties under Law; provided, further, that, prior to providing any nonpublic information or discussions data or participating in any discussions, in each case, permitted pursuant to furnish the foregoing proviso, the Company shall have provided such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company Parent and shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable stringent to such third party than the Company than those contained in terms of the Confidentiality Agreement (any such applicable to Parent, which confidentiality agreement with shall not provide such third partyparty with any exclusive right to negotiate with the Company or its Representatives. Without limiting the foregoing, an “Acceptable Confidentiality Agreement”it is agreed that any violation of the restrictions set forth in this Section 6.12(a) and (2by any Subsidiary or Representative of the Company shall constitute a breach of this Section 6.12(a) subject by the Company. In addition to applicable Lawthe foregoing, the Company shall make available not submit to the Parent vote of its stockholders any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than the Merger unless, and only after, this Agreement has been terminated in accordance with Section 6.2(d)its terms.
(b) Except as provided in Section 6.2(d) The Company will, and in Section 6.2(g)will cause its Representatives to, each immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of the Companythis Agreement with any person (other than Parent, the Company’s Board, Bank and each Company Board Committee shall not (itheir Representatives in their capacity as such) withdraw or withhold (or amend or modify in a manner adverse with respect to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal and will use its reasonable best efforts, subject to Law, to (x) enforce any action described confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent, the Bank and their Representatives in the immediately foregoing clauses (itheir capacity as such) or (ii), an “Adverse Recommendation Change”)pursuant to such agreement.
(c) Except as provided in Section 6.2(d), the Company shall not Promptly (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause in any event within twenty-four (and shall cause the Company Subsidiaries to take reasonable actions to cause24) each Company Entity’s Representatives not to, execute or enter into hours) following receipt of any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), Acquisition Proposal or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or inquiry that could reasonably be expected to lead to any an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (other than including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal, copies of any written Acquisition Proposal and written summaries of any material oral communications relating to an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)Acquisition Proposal), and will keep Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any revisions of the Transactionsterms of such inquiry or Acquisition Proposal.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).used herein,
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in From and after the date of this Section 6.2(a) and in Section 6.2(d)Agreement, the Company shall not (and shall cause the Company its Subsidiaries to will not), and shall take such will use their reasonable actions best efforts to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their respective officers, directors, employees and investment bankers, attorneys, accountants, financial advisors, agentsaccountants or other advisors, and other agents or representatives (collectively, "Representatives") retained by the “Representatives”Company or any of its Subsidiaries to immediately cease and cause to be terminated any discussions or negotiations with any parties (other than Parent, Newco and their respective representatives) that may be ongoing with respect to an Acquisition Proposal. From and after the date of this Agreement, the Company and its Subsidiaries will not, and will not toauthorize their respective officers, directors, employees or Representatives to directly or indirectly (i) directly or indirectly initiate, solicit, propose or knowingly encourage, or facilitate (including by way of furnishing non-public information) encourage any inquiries with respect to, or the making or submission of, of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, Proposal or (ii) participate except as permitted below in Section 6.2(d) or to inform persons of the existence of the provisions contained in this Section 6.2, engage in negotiations or discussions or negotiations with, or furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal person relating to, in connection with or in contemplation of which would reasonably likely lead to an Acquisition Proposal. Notwithstanding The Company shall promptly inform its, and its Subsidiaries', directors, officers, employees and Representatives of the immediately foregoing sentenceobligations undertaken in this Section 6.2. Without limiting the foregoing, at it is agreed that any time prior to obtaining violation of the Company Required Vote, restrictions set forth in the Company and preceding sentence by any of Company's Subsidiaries or any of the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from 's or its Subsidiaries' officers, directors, employees or Representatives shall be a breach of this Section 6.2(a6.2 by the Company.
(b) Except as provided in this Section 6.2(b), whether by any Company Entity the Board of Directors (or any Representative committee thereof) shall not and shall not publicly propose to (i) withdraw, modify or change in a manner adverse to Parent the Company Recommendation, (ii) approve, adopt or recommend an Acquisition Proposal or Superior Proposal or (iii) approve or recommend, or allow the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture agreement, acquisition agreement or similar agreement constituting or relating to, or that is intended to or would be reasonably expected to result in an Acquisition Proposal (other than any confidentiality agreement as if all Company Entities and Representatives were bound permitted by paragraph (d) of this Section 6.2(a))6.2) (any action described in clause (i), (xii) the Company gives the Parent the notice required by Section 6.2(eor (iii), a "Company Adverse Recommendation Change"). Notwithstanding the foregoing, prior to the Stockholders' Meeting, in response to an unsolicited bona fide written Acquisition Proposal, if the Board of Directors (yA) after receiving the advice of its financial advisors, the Company’s Board determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) that such proposal constitutes, or Acquisition Proposal is reasonably likely to lead to, a Superior Proposal, and (zB) the Company’s Board determines in good faith, faith (after consultation with its outside legal counsel, ) based on such matters as it deems appropriate that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely do so would cause it not to be inconsistent in compliance with the Company Board’s its fiduciary duties under applicable LawLaw and (C) is not otherwise in violation of this Section 6.2, then the Company may in connection with such Superior Proposal, make a Company Adverse Recommendation Change; except provided, that the Board of Directors shall not make a Company Adverse Recommendation Change unless (1I) the Company has given Parent three (3) business days prior written notice of its intention to take such action and (II) in the case of an action described in clause (ii) or (iii) above, (x) the Board of Directors shall have considered and negotiated with Parent in good faith regarding proposed changes to this Agreement proposed in writing by Parent, (y) the Company has complied in all material respects with its obligations under this Section 6.2 and (z) the Company shall not deliver have terminated this Agreement in accordance with the provisions of Sections 8.4(ii) and 8.6(e) hereof.
(c) The Company shall promptly (and in any non-public event within 48 hours) advise Parent orally and in writing of the Company's receipt of any request for information or any Acquisition Proposal and the material terms and conditions of such request or Acquisition Proposal (including the identity of the person making such request or Acquisition Proposal). The Company shall keep Parent reasonably informed in all material respects of the status and details of any such Acquisition Proposal.
(d) Notwithstanding any other provision of this Agreement, provided that in no event shall this Section 6.2(d) affect or limit the obligations of the Company and the Board of Directors under Sections 6.2(a), (b) or (c), the Company and the Board of Directors
(i) prior to Stockholders' Meeting, may participate in discussions or negotiations with or furnish information to any person in connection with an unsolicited bona fide written Acquisition Proposal by such third party without first entering into person received after the date hereof, if and only to the extent that prior to taking such action the Board of Directors
(A) determines in good faith (after receiving the advice of its outside legal counsel and a financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal, which Acquisition Proposal was not, directly or indirectly, the result of a breach of this Section 6.2 and (B) receives from such person an executed confidentiality agreement with such third party on agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement Agreements; and
(any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”ii) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information be permitted to (or as promptly as practicable after such information is delivered toA) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking take and disclosing disclose to the Company’s 's stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or make a statement required under Rule 14a-9 under the Exchange Act and (B) make any disclosure with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent Company's stockholders that is required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company . If requested to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company do so by a third party, the Company may waive the provisions of any "standstill" agreement between the Company and such person solely to the extent necessary and for the limited purpose of permitting such person to submit an unsolicited Acquisition Proposal is not withdrawnthat the Board of Directors believes, (ii) the Company’s Board determines in its good faith judgment (after consultation with its legal and financial advisors that such Acquisition Proposal constitutes advisors), is reasonably likely to result in a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer made by any person other than Parent, Newco or any affiliate thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall relating to (i) advise Parent the acquisition of, other than in writing the transactions contemplated by this Agreement, (x) the Company, (y) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of 25% or more of any request for non-public information class of capital stock of the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer or exchange offer or similar transaction involving the Company including, without limitation, any Acquisition Proposal received from single or multistep transaction or series of related transactions which is structured in good faith to permit such person to acquire beneficial ownership of 25% or more of any Person, class of capital stock of the Company or any inquiry, discussions, (z) 25% or negotiations with respect to any Acquisition Proposal, more of the fair market value of the assets of the Company and the material terms of such request, Acquisition Proposal, inquiry, discussions, its Subsidiaries taken as a whole or negotiations, and (ii) promptly provide to Parent a detailedany other merger, written summary of all of the material termsconsolidation, provisionsbusiness combination, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (orrecapitalization, at the Company’s electionreorganization, a copy thereof) and the identity of the Person or group making any such requestliquidation, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, dissolution or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring similar transaction involving the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalfSubsidiaries.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) From and in Section 6.2(d)after the date hereof, the Company shall will not (and shall cause the Company and the Subsidiaries to not), and shall take such reasonable actions will use their best efforts to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their respective directors, officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, agentslegal counsel, accountants and other agents and representatives (collectivelynot to initiate or solicit, directly or indirectly, any inquiries or the “Representatives”) not making of any proposal or offer with respect to, (i) directly engage in negotiations concerning, provide any information or indirectly initiatedata to, solicitany person relating to any acquisition, knowingly encourage, business combination or facilitate purchase (including by way of furnishing non-public informationa tender or exchange offer) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or of (iii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity all or any Company Asset to, or provide access to significant portion of the properties, books or records assets of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause Subsidiaries, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% or more of the outstanding shares of capital stock of any Subsidiary of the Company (a "Takeover Proposal"), other than the Merger; provided, however, that nothing contained in this Section 6.2(a7.2 shall prohibit the Board of Directors of the Company from (i) with respect furnishing information to (but only pursuant to a third party if (wconfidentiality agreement in customary form) or entering into discussions or negotiations with any person or group that makes a Superior Proposal that was not solicited by the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal or which did not otherwise result from a breach of this Section 6.2(a)7.2, whether by any Company Entity or any Representative (as if all Company Entities if, and Representatives were bound by this Section 6.2(a)))only to the extent that, (xA) the Company gives Board of Directors of the Parent the notice required by Section 6.2(e)Company, (y) after receiving based upon the advice of its financial advisorsoutside legal counsel, the Company’s Board determines in good faith that such proposal constitutesaction is reasonably necessary for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) concurrently with furnishing such information to, or is reasonably likely to lead toentering into discussions or negotiations with, a such person or group making this Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions Parent to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent)effect that it is furnishing information to, then the Company must provide to the Parent a new Notice of Acquisition Proposal andor entering into discussions or negotiations with, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposalperson or group, and (vC) at the end Company keeps Parent informed of the three-Business Day period described in status and all material information including the immediately foregoing clause (iv) (including any extension identity of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment person or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations group with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to extent such Acquisition Proposal). The Company shall disclosure would not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).47
Appears in 1 contract
Sources: Merger Agreement (May & Speh Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(aSubject to Sections 6.03(b), 6.03(c), 6.03(d) and in Section 6.2(d6.03(f), (i) neither the Company nor any of its Subsidiaries shall, nor shall not (and shall cause the Company or any of its Subsidiaries to not)authorize or knowingly permit any of the directors of the Company, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officerssenior executive officers of the Company, directors, or any investment bankers, attorneys, accountants, financial advisors, agents, and accountants or other representatives advisors retained by the Company or its Subsidiaries (collectively, the “Company Representatives”) not to, (i) directly or indirectly initiateindirectly, (A) solicit, initiate or knowingly encourage, facilitate or facilitate (including by way encourage the submission of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (B) enter into or (ii) participate or engage in any discussions or negotiations with, or furnish any non-public information or data access relating to any the Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity its Subsidiaries to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position Third Party with respect to an Acquisition Proposal pursuant or any inquiry or proposal that could reasonably be expected to Rule 14d-9 lead to an Acquisition Proposal or 14e-2(a(C) promulgated under enter into any agreement in principle, letter of intent, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal and (ii) except as otherwise provided in this Section 6.03, the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including Board of Directors of the Company Board’s fiduciary duties; except that compliance with such rules will shall not permit the Company fail to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Boardmake, and each Company Board Committee shall not (i) withdraw withdraw, withhold, qualify or withhold (modify, or amend resolve to or publicly propose to withdraw, withhold, qualify or modify in a manner adverse to any Buyer Entity)Parent, the Company Board Recommendation, or approve, endorse or recommend, or publicly propose to withdraw approve, endorse or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any an Acquisition Proposal (any action described of the foregoing in the immediately foregoing clauses (i) or this clause (ii), an “Adverse Recommendation Change”).
; provided, that, for the avoidance of doubt, neither (c1) Except as provided the determination by the Board of Directors in accordance with this Section 6.2(d), 6.03 that an Acquisition Proposal constitutes a Superior Proposal or (2) the delivery by the Company of the notice required by Section 6.03(f) shall, in and of itself, constitute an Adverse Recommendation Change. The Company shall not (and shall cause the Company Subsidiaries immediately cease any discussions or negotiations with any person with respect to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), an Acquisition Proposal or any letter of intent, term sheet, memorandum of understanding, inquiry or agreement in principle, (i) relating to or proposal that could reasonably be expected to lead to any an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances and reasonably promptly after the date hereof terminate access to any Third Party or its Representatives to any electronic data room maintained by the Company or its Subsidiaries with respect to the transactions contemplated in the penultimate sentence of Section 6.2(a))by this Agreement. The Company and its Subsidiaries shall not release any Third Party from, or waive, amend or modify any provision of, or grant permission under, (iix) requiring any standstill provision in any agreement to which the Company to abandon, terminate, or fail to consummate the Merger or any of its Subsidiaries is a party or (y) any confidentiality provision in any agreement to which the TransactionsCompany or any of its Subsidiaries is a party except, with respect to clause (x), (A) to the extent that prior to the receipt of the Company Shareholder Approval the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors and outside legal counsel, the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law or (B) to the extent that any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party includes a “fall-away” or other similar provision that causes such standstill provision to be released, waived, modified or amended as a result of the Company entering into this Agreement in and of itself.
(db) Notwithstanding the foregoing set forth in this Section 6.26.03(a), if at any time prior to obtaining the receipt of the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition ProposalShareholder Approval, the Company’s Board is permitted to make Company or any of the Company Representatives has received an Adverse Recommendation Change if (i) a written unsolicited written, bona fide Acquisition Proposal (from any Third Party that did not result from a material breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities 6.03 and Representatives were bound by this Section 6.2(d))) is made to that the Board of Directors of the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its financial advisor and outside legal counsel, would reasonably be expected to result in a Superior Proposal, then the Company, directly or indirectly through the Company Representatives, may on the terms provided in this Section 6.03 (i) engage in negotiations or discussions with such Third Party and its Representatives related to such written Acquisition Proposal and (ii) furnish to such Third Party or its Representatives non-public information and access relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided, that, prior to or substantially concurrently with the time it is made available to such Third Party, the Company shall make available to Parent any material non-public information relating to the Company or its Subsidiaries that is made available to such Third Party and that was not previously made available to Parent.
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to receipt of the Company Shareholder Approval, if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law, the Board of Directors of the Company may, at any time prior to the receipt of the Company Shareholder Approval, make such an Adverse Recommendation Change is likely in response to be inconsistent with any fact, event, change, development or set of circumstances that materially affects the business, financial condition or results of operations of the Company Board’s fiduciary duties under applicable Lawand its Subsidiaries, taken as a whole that (ivA) subject does not involve or relate to compliance with applicable Law, an Acquisition Proposal or to Parent or any of its Affiliates or its or their respective Representatives and (B) (i) is not known and was not reasonably discoverable or foreseeable to the Board of Directors of the Company as of the date hereof or (ii) the consequences of which were not reasonably discoverable or foreseeable to the Board of Directors of the Company as of the date hereof; provided that in each case: (x) the Company provides the Parent three (3) Business Days’ prior written notice of the Company’s its intention to take such action, which notice shall include reasonable detail with respect to any such facts, events, changes, developments or set of circumstances underlying such action; (y) during such three (3) Business Day period described in clause (x), the Company considers in good faith and discusses with Parent and its Representatives (if Parent desires to discuss) any adjustments or modifications to the terms of this Agreement; and (z) at the end of the three (3) Business Day period described in clause (x), the Board of Directors of the Company determines in good faith after consultation with its financial advisor and outside legal counsel (after taking into account any adjustments or modifications to the terms of this Agreement proposed in writing by Parent during the period described in clause (x)) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law. The Company shall notify Parent in writing within one (1) Business Day after any Adverse Recommendation Change.
(d) In addition, nothing contained herein shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the 1934 Act with regard to an Acquisition Proposal; or (ii) making any disclosure to the shareholders of the Company if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law) provided, that in the case of the foregoing clauses (i) or (ii), any such action taken or statement made that contains an Adverse Recommendation Change shall be subject to the provisions of this Section 6.03.
(e) The Company shall (i) notify Parent orally and in writing promptly (but in no event later than forty-eight (48) hours) after receipt by the Company of any Acquisition Proposal, which notice shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal and (ii) keep Parent reasonably informed promptly (but in no event later than forty-eight (48) hours) after any material developments, discussions or negotiations regarding any Acquisition Proposal and shall provide to Parent promptly (but in no event later than forty-eight (48) hours) after receipt thereof of copies of all proposed transaction agreements or proposal letters or similar materials (and any attachments, annexes, exhibits, schedules and other similar materials in connection therewith) sent or provided to the Company or any of its Subsidiaries that describe any material terms or conditions of any Acquisition Proposal.
(f) Notwithstanding anything contained in this Agreement to the contrary, at any time prior to receipt of the Company Shareholder Approval, if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel and in response to an unsolicited, written, bona fide Acquisition Proposal that did not result from a material breach of Section 6.03, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law, then the Board of Directors of the Company may make an Adverse Recommendation Change because or cause the Company to terminate this Agreement pursuant to Section 10.01(d)(i) (provided that, substantially concurrently with such termination the Company enters into a definitive agreement with respect to such Superior Proposal (a “Company Acquisition Agreement”)); provided, that, prior to taking any such action the Company has complied in all material respects with this Section 6.03(f). Further, the Board of Directors of the Company shall not make an Adverse Recommendation Change (or terminate this Agreement pursuant to Section 10.01(d)(i)) pursuant to this Section 6.03(f) in response to an Acquisition Proposal, unless (i) the Company promptly notifies Parent in writing, at least three (3) Business Days before taking such action, of the determination of the Board of Directors of the Company that such Acquisition Proposal constitutes a Superior Proposal and of its intention to take such action, attaching the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making such Superior Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are each time any material revisions to the Acquisition Proposal (relative revision or material amendment to the terms of the Acquisition Proposal as set forth determined to be a Superior Proposal is made, the initial three (3) Business Day period shall be extended for an additional two (2) Business Days after notification of such material revision or material amendment in accordance with Section 6.03(e) and this Section 6.03(f) to Parent) and (ii) the Notice Board of Acquisition Proposal as provided to the Parent), then Directors of the Company must provide (A) shall have considered in good faith and discussed with Parent (if Parent desires to the discuss) any adjustments or modifications to this Agreement proposed Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (vB) shall have determined in good faith, at the end of the three-Business Day period described set forth in the immediately foregoing clause (ivi) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith and after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof advisor, that the Parent proposes) that the such Acquisition Proposal constitutes would continue to constitute a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company if any adjustment adjustments or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification modifications to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction Agreement proposed in writing by an executive officer of such Person) all confidential information heretofore furnished Parent were to such Person by or on its behalfbe given effect.
(g) Nothing in this Agreement will prohibit or restrict The Board of Directors of the Company shall reaffirm publicly the Company Board Recommendation to the Company’s Board from effecting an Adverse Recommendation Change not involving or relating shareholders within ten (10) Business Days of Parent’s written request to do so, made at any time that an Acquisition Proposal in response has been made to the Company, has been publicly announced and is pending; provided that Parent shall be entitled to make such a material adverse development or change in circumstances written request for reaffirmation, and the Board of Directors of the Company shall only be required to make such reaffirmation, on only one occasion with respect to any one Acquisition Proposal (with each material revision or material amendment to the Parent Business occurring price or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because terms of such material development or change Acquisition Proposal triggering one additional Parent right to request reaffirmation).
(h) As used in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).:
Appears in 1 contract
Acquisition Proposals. (a) Except From and after the date of this Agreement, MFC shall, and shall cause all MFC Subsidiaries to, and each shall use its reasonable best efforts to cause any of its and their Representatives to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Closing Date or the termination hereof and except as provided in this Section 6.2(a) and in Section 6.2(d)permitted by the following provisions, the Company MFC shall not (not, and shall cause the Company MFC Subsidiaries to not), and shall take such reasonable actions to cause (each of its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) their respective Representatives not to, directly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or encourage the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, of an Acquisition Proposal, or (ii) except in accordance with Section 10.1(d) hereof, enter into any Contract or letter of intent with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 8.8(a)), (iii) other than informing Persons of the provisions contained in this Section 8.8, participate or engage in any discussions or negotiations withregarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) MFC or MB in connection with any inquiries or the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach making of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith proposal that such proposal constitutes, or is reasonably likely to lead to, any Acquisition Proposal; provided, however, that, at any time prior to the Effective Time, in response to an unsolicited Acquisition Proposal that the Board of Directors of MFC determines in good faith is reasonably likely to lead to a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential which Acquisition Proposal that was made after the date hereof and did not previously made available to the Parent, contemporaneously with the delivery result from a material breach of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position 8.8, MFC may (i) furnish information with respect to an MFC and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to Rule 14d-9 a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided, however, that all such information has previously been, or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosureis, in either case substance, provided to KBI contemporaneously as it is provided to such Person, and (ii) participate in discussions or negotiations with the extent required by applicable LawPerson making such Acquisition Proposal, including the Company Board’s fiduciary duties; except that compliance with and its officers, directors, employees, Representatives and agents regarding such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)Acquisition Proposal.
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each Neither the Board of the Company, the Company’s Board, and each Company Board Committee Directors of MFC nor any committee thereof shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, adopt or approve, or propose publicly to recommend, adopt, adopt or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses this clause (i) being referred to as a “MFC Adverse Recommendation Change”) or (ii)) approve or recommend, an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), or allow MFC or any of the Company shall not (and shall cause the Company MFC Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into into, any Contract (including any Contract, letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), agreement constituting or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead related to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), one or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any more of the Transactions.
(dconfidentiality agreements referred to in Section 8.8(a) hereof). Notwithstanding the foregoing set forth in this Section 6.2foregoing, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to if (x) MFC receives an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (iiy) the Company’s Board determines of Directors of MFC shall have determined in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, counsel that the failure to make take such an Adverse Recommendation Change action is reasonably likely to be inconsistent with the Company Board’s result in a breach of its fiduciary duties under applicable Law, and (ivz) subject to compliance with applicable Law, the Company MFC provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition ProposalAdverse Recommendation”)) advising KBI that the Board of Directors of MFC has made the determination described in clause (y) above, it being understood that then the Board of Directors of MFC may take either or both of the following actions: (A) make a Notice of Acquisition Proposal does not in itself institute an MFC Adverse Recommendation Change for purposes hereofand (B) upon termination of this Agreement in accordance with Section 10.1(d), which notice must include the information with respect approve and enter into a Contract relating to such an Acquisition Proposal that is specified in Section 6.2(e); except thatconstitutes a Superior Proposal.
(c) From and after the date of this Agreement, if there are any material revisions to unless the Acquisition Proposal (relative to the terms Board of the Acquisition Proposal as set forth in the Notice Directors of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, MFC shall have determined reasonably and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and that taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change action is reasonably likely to be inconsistent with the Company Board’s result in a breach of its fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent MFC shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (itwenty-four hours) advise Parent in writing KBI of the receipt of any inquiries, requests, proposals or offers relating to an Acquisition Proposal, or any request for non-public nonpublic information relating to MFC or any Acquisition Proposal received from of its Subsidiaries by any PersonPerson that informs MFC or any MFC Representative that such Person is considering making, or any inquiryhas made, discussions, or negotiations with respect to any an Acquisition Proposal. Any such notice shall be made in writing, and shall indicate the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) conditions thereof and the identity of the Person other party or group making parties involved, and shall include a copy of any such written inquiry, request, Acquisition Proposal, proposal or inquiry or with whom any discussions or negotiations are taking placeoffer. The Company MFC agrees that it shall keep the Parent reasonably KBI informed on a current basis of the status and terms of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(fd) Immediately after the execution and delivery hereofNothing contained in this Section 8.8 shall prohibit MFC from making any disclosure to MFC shareholders if, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions good faith judgment of the obligations undertaken Board of Directors, failure so to disclose would be reasonably likely to result in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration breach of acquiring the Company its fiduciary duties or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties other obligations under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Share Exchange Agreement (Kentucky Bancshares Inc /Ky/)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company shall, the Company shall not (and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and use reasonable best efforts to cause its stockholders (including without limitation the Company Subsidiaries to notMajority Stockholders), representatives and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives agents (collectively, the “RepresentativesRestricted Parties”) not to, immediately cease and cause to be terminated any discussions or negotiations with any parties (iother than the parties to this Agreement and their Affiliates, representatives and advisors) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries that may be ongoing with respect to, or that would be reasonably expected by the making or submission of, any proposal that constitutes, or would reasonably be expected parties to lead to, an a Company Acquisition Proposal. The Company shall not and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and shall use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents not to, directly or indirectly, (x) take any action to enter into any agreement with respect to any Company Acquisition Proposal, or (iiy) participate or engage in discussions or negotiations withsolicit, negotiate, furnish any non-public information to, accept, encourage, consider, participate in negotiations or data discussions relating to any Company Entity or any Company Asset to, or provide access to the propertiesotherwise pursue, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding , other than the immediately foregoing sentencetransactions contemplated by this Agreement; provided, however, that at any time prior to obtaining the date that is 20 Business Days after the date of this Agreement, in response to a bona fide written unsolicited Company Acquisition Proposal received after the date hereof that the Board of Directors of the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes, or is reasonably likely expected to lead to, a Superior Proposal, and (z) which Company Acquisition Proposal was not, directly or indirectly, the Company’s Board determines in good faithresult of a breach by any Restricted Party of this Section 9.13(a), after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that may, subject to compliance with Section 9.13(b) and Section 9.13(c), (1i) the Company shall not deliver any non-public furnish information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable respect to the Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than those contained in the Confidentiality Agreement (any provided that all such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is has previously been delivered or made available to any other Person Investor or group in connection with any actual is delivered or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously Investor prior to or concurrently with the delivery of such information to (or as promptly as practicable after such information time it is delivered to) or made available to such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Securities Purchase Agreement
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such will cause its Subsidiaries and use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or facilitate (including by way iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal, except to notify a person that has made or, to the knowledge of furnishing non-public information) the Company, is making any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead tois considering making, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to Proposal of the properties, books or records existence of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) provisions of this Section 6.2(a) with respect 6.10(a); provided that, prior to a third party if (w) the adoption of this Agreement by the stockholders of the Company has received a by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach after the date of this Section 6.2(a), whether by any Company Entity or any Representative Agreement and its Board of Directors concludes in good faith (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its outside counsel and with respect to financial matters, its financial advisors, the Company’s Board determines in good faith ) that such proposal constitutes, Acquisition Proposal constitutes or is reasonably more likely than not to lead to, result in a Superior Proposal, it may, and (z) the Company’s Board determines in good faithmay permit its Subsidiaries and its and its Subsidiaries’ Representatives to, after consultation with its outside legal counsel, that the failure furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions or to furnish the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such information or data actions would be more likely than not to such third party is likely to be inconsistent with the Company Board’s result in a violation of its fiduciary duties under applicable Lawlaw; except that (1) provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall not deliver any non-public have provided such information to such third party without first entering Parent and entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law), the Company which confidentiality agreement shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection not provide such person with any actual or potential Acquisition Proposal that was not previously made available exclusive right to the Parent, contemporaneously negotiate with the delivery Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position Agreement with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change person other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company its Subsidiaries to not)to, and shall take such use its reasonable actions best efforts to cause its and their respective Representatives to, (x) immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to an Acquisition Proposal or potential Acquisition Proposal and (y) promptly (and shall in any event within two (2) Business Days after the date hereof) request the prompt return from all such Persons or cause the destruction of all copies of confidential information previously provided to such parties by the Company, its Subsidiaries or their respective Representatives and shall deny access to any virtual data room containing any such information to any party (other than Parent and its Representatives). The Company and its Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agentswill not, and other representatives (collectively, the “Representatives”) Company and each of its Subsidiaries will not authorize or knowingly permit any of their respective Representatives to, (i) directly or indirectly initiate, solicit, cause, knowingly facilitate or knowingly encourage, directly or facilitate indirectly (including by way of furnishing non-public information) any inquiries with respect to), or the making or submission of, of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, Proposal or (ii) participate or except as permitted by Section 6.3(b), engage in negotiations or discussions or negotiations with, or furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of relating to an Acquisition Proposal. .
(b) Notwithstanding anything to the immediately foregoing sentencecontrary contained in this Agreement, at any time prior to obtaining the Company Required VoteShareholder Approval (but in no event after obtaining the Company Shareholder Approval), if the board of directors of the Company receives a bona fide written Acquisition Proposal made after the date hereof in circumstances not involving a breach of Section 6.3(a), the Company and the Company’s Board are permitted its board of directors may, after providing Parent not less than 24 hours notice of its intention to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a)actions, whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).in
Appears in 1 contract
Sources: Merger Agreement (Longview Fibre Co)
Acquisition Proposals. (a) Except From and after the date of this Agreement, FFKY shall, and shall cause all FFKY Subsidiaries to, and each shall use its reasonable best efforts to cause any of its and their Representatives to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Closing Date or the termination hereof and except as provided in this Section 6.2(a) and in Section 6.2(d)permitted by the following provisions, the Company FFKY shall not (not, and shall cause the Company FFKY Subsidiaries to not), and shall take such reasonable actions to cause (each of its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) their respective Representatives not to, directly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or encourage the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, of an Acquisition Proposal, or (ii) except in accordance with Section 10.1(d) hereof, enter into any Contract or letter of intent with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 8.8(a)), (iii) other than informing Persons of the provisions contained in this Section 8.8, participate or engage in any discussions or negotiations withregarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) FFKY or FFB in connection with any inquiries or the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach making of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith proposal that such proposal constitutes, or is reasonably likely to lead to, any Acquisition Proposal; provided, however, that, at any time prior to the Effective Time, in response to an unsolicited Acquisition Proposal that the Board of Directors of FFKY determines in good faith is reasonably likely to lead to a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential which Acquisition Proposal that was made after the date hereof and did not previously made available to the Parent, contemporaneously with the delivery result from a material breach of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position 8.8, FFKY may (i) furnish information with respect to an FFKY and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to Rule 14d-9 a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided, however, that all such information has previously been, or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosureis, in either case substance, provided to CBIN contemporaneously as it is provided to such Person, and (ii) participate in discussions or negotiations with the extent required by applicable LawPerson making such Acquisition Proposal, including the Company Board’s fiduciary duties; except that compliance with and its officers, directors, employees, Representatives and agents regarding such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)Acquisition Proposal.
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each Neither the Board of the Company, the Company’s Board, and each Company Board Committee Directors of FFKY nor any committee thereof shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, adopt or approve, or propose publicly to recommend, adopt, adopt or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses this clause (i) being referred to as a “FFKY Adverse Recommendation Change”) or (ii)) approve or recommend, an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), or allow FFKY or any of the Company shall not (and shall cause the Company FFKY Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into into, any Contract (including any Contract, letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), agreement constituting or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead related to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), one or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any more of the Transactions.
(dconfidentiality agreements referred to in Section 8.8(a) hereof). Notwithstanding the foregoing set forth in this Section 6.2foregoing, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to if (x) FFKY receives an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (iiy) the Company’s Board determines of Directors of FFKY shall have determined in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, counsel that the failure to make take such an Adverse Recommendation Change action is reasonably likely to be inconsistent with the Company Board’s result in a breach of its fiduciary duties under applicable Law, and (ivz) subject to compliance with applicable Law, the Company FFKY provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition ProposalAdverse Recommendation”)) advising CBIN that the Board of Directors of FFKY has made the determination described in clause (y) above, it being understood that then the Board of Directors of FFKY may take either or both of the following actions: (A) make a Notice of Acquisition Proposal does not in itself institute an FFKY Adverse Recommendation Change for purposes hereofand (B) upon termination of this Agreement in accordance with Section 10.1(d), which notice must include the information with respect approve and enter into a Contract relating to such an Acquisition Proposal that is specified in Section 6.2(e); except thatconstitutes a Superior Proposal.
(c) From and after the date of this Agreement, if there are any material revisions to unless the Acquisition Proposal (relative to the terms Board of the Acquisition Proposal as set forth in the Notice Directors of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, FFKY shall have determined reasonably and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and that taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change action is reasonably likely to be inconsistent with the Company Board’s result in a breach of its fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent FFKY shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (itwenty-four hours) advise Parent in writing CBIN of the receipt of any inquiries, requests, proposals or offers relating to an Acquisition Proposal, or any request for non-public nonpublic information relating to FFKY or any Acquisition Proposal received from of its Subsidiaries by any PersonPerson that informs FFKY or any FFKY Representative that such Person is considering making, or any inquiryhas made, discussions, or negotiations with respect to any an Acquisition Proposal. Any such notice shall be made in writing, and shall indicate the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) conditions thereof and the identity of the Person other party or group making parties involved, and shall include a copy of any such written inquiry, request, Acquisition Proposal, proposal or inquiry or with whom any discussions or negotiations are taking placeoffer. The Company FFKY agrees that it shall keep the Parent reasonably CBIN informed on a current basis of the status and terms of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(fd) Immediately after the execution and delivery hereofNothing contained in this Section 8.8 shall prohibit FFKY from making any disclosure to FFKY shareholders if, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions good faith judgment of the obligations undertaken Board of Directors, failure so to disclose would be reasonably likely to result in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration breach of acquiring the Company its fiduciary duties or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties other obligations under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Share Exchange Agreement (Community Bank Shares of Indiana Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) The Company will not, and in Section 6.2(d), the Company shall will not (permit or cause any of its Subsidiaries or any of their officers and shall cause the Company Subsidiaries to not)directors to, and shall take such reasonable actions to cause direct its and its Subsidiaries' employees, agents and Representatives (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”as defined below) not to, (i) directly or indirectly indirectly, initiate, solicit, knowingly encourageencourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company, (ii) the purchase of 15% or more of the assets (including equity securities of the Company's subsidiaries) of the Company and its subsidiaries taken as a whole, or facilitate (iii) the purchase of Shares not in the ordinary course (purchases pursuant to a Compensation and Benefit Plan being in the ordinary course), but not, in any case, including by way the matters set forth in Section 6.2(a) of furnishing non-public information) the Company Disclosure Letter (any inquiries with respect such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its Subsidiaries to, and will use commercially reasonable efforts to cause any of the officers and directors of it or its Subsidiaries not to and shall direct its and its Subsidiaries' employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or the making or submission ofhave any discussions with, any proposal that constitutes, or would reasonably be expected Person relating to lead to, an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal (including, without limitation, by means of an amendment to the Rights Agreement); provided, however, that nothing contained in this Agreement shall prevent the Company or its board of directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) participate or engage if the Merger shall not have been approved by the Company Requisite Vote by such date (A) providing information in discussions or negotiations with, furnish any non-public information or data relating response to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any a request therefor by a Person that who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a unsolicited bona fide written Acquisition Proposal if the board of directors receives from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish Person so requesting such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a an executed confidentiality agreement with such third party on terms no less favorable substantially equivalent to the Company than those contained in the Confidentiality Agreement (as defined below); (B) engaging in any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person negotiations or group in connection discussions with any actual Person who has made an unsolicited bona fide written Acquisition Proposal; or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of (C) recommending such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each stockholders of the Company, if and only to the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principleextent that, (i) relating in each such case referred to or that could reasonably be expected to lead to any Acquisition Proposal in clause (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)A), (B) or (iiC) requiring above, the board of directors of the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its outside legal and financial advisors counsel that such Acquisition Proposal constitutes a Superior Proposalaction is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law and (ii) in each case referred to in clause (B) or (C) above, (iii) the Company’s Board board of directors of the Company determines in good faith, faith (after consultation with its outside legal counselfinancial advisor) that such Acquisition Proposal, that the failure to make such an Adverse Recommendation Change if accepted, is reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Lawconsummated, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification all legal, financial and regulatory aspects of the terms hereof that proposal and the Parent proposes) that Person making the proposal and would, if consummated, be reasonably likely to result in a more favorable transaction than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal constitutes being referred to in this Agreement as a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a "Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal"). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to will immediately cease and terminate cause to be terminated any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposalof the foregoing. The Company shall (i) agrees that it will take the necessary steps to promptly inform the Representatives involved individuals or entities referred to in the Transactions first sentence hereof of the obligations undertaken in this Section 6.2(a) 6.2 and in the Confidentiality Agreement (ii) request each Person who has heretofore executed a confidentiality agreement as defined in Section 9.7). The Company will notify Parent promptly, but in any event not later than one day following receipt, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such Person’s consideration of acquiring notice, the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer name of such Person) all confidential information heretofore furnished to such Person by and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Datecurrent basis, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because status and terms of any such material development proposals or change in circumstances (offers and the status of any such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment negotiations or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)discussions.
Appears in 1 contract
Sources: Merger Agreement (Mmi Companies Inc)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) will instruct its Representatives not to, directly or indirectly: (i) initiate, solicit or knowingly encourage or knowingly facilitate the submission of any offer or proposal that constitutes or could reasonably be expected to lead to any Acquisition Proposal, (ii) engage in, enter into or participate in any discussions or negotiations with any Person regarding, furnish to any Person any non-public information or afford access to the business, properties, assets, books or records of the Acquired Companies to, or take any other action to assist or knowingly facilitate or knowingly encourage any effort by any Person, in each
(b) Notwithstanding Section 6.3(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to the Acceptance Time, (i) the Company has received an Acquisition Proposal that did not, directly or indirectly initiateindirectly, solicit, knowingly encourage, result from a material breach of Section 6.3(a) and (ii) the Company Board or facilitate a committee thereof determines in good faith (including by way of furnishing non-public informationafter consultation with outside counsel and a financial advisor) any inquiries with respect to, or the making or submission of, any proposal that constitutes, such Acquisition Proposal constitutes or would reasonably be expected to lead to, an Acquisition to or result in a Superior Proposal, then the Company may (A) furnish information with respect to the Acquired Companies to the Person or group making such Acquisition Proposal and its Representatives and (iiB) participate or engage in discussions or negotiations withwith such Person and its Representatives regarding such Acquisition Proposal; provided, furnish that, (1) the Company will not, and will instruct its Representatives not to, disclose any material non-public information to such Person unless the Company (x) has entered into a confidentiality agreement with such Person existing as of the date of this Agreement or data relating to any Company Entity or any Company Asset to(y) first enters into a confidentiality agreement with such Person with terms governing confidentiality that, or provide access taken as a whole, are not materially less restrictive, in the aggregate, to the propertiesother Person than those contained in the Confidentiality Agreement, books and (2) the Company will, as promptly as reasonably practicable, and in any event within one (1) Business Day, provide or records of make available to Parent any material non-public information concerning the Company Entity to, any provided or made available to such other Person that has was not previously provided or made an Acquisition Proposal available to Parent or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentencePurchaser; provided, at any time prior to obtaining further, that the Company Required Vote, may only take the actions described in clauses (A) or (B) above if the Company and Board determines, in good faith, after consultation with outside counsel, that the Company’s Board are permitted failure to take any actions described such action would be inconsistent with its fiduciary duties under applicable Law. The Company will not, and will cause its Representatives not to, release any Person from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in clause (ii) of this Section 6.2(a) with respect any agreement to a third party if (w) which the Company has received is a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a)party; provided, whether by any Company Entity or any Representative (as that, if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, counsel that the failure to participate in take such negotiations or discussions or to furnish such information or data to such third party is likely to action would be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of may waive any such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions standstill provision solely to the Acquisition Proposal extent necessary to permit the applicable Person (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company will not, nor will it permit any of its subsidiaries to, nor will it authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company shall not (and shall cause the Company Subsidiaries to not)or any of its subsidiaries to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageinitiate or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing non-public information) furnish to any person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries with respect to, or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition ProposalProposal provided, however, that nothing contained in this Section 6.5(a) shall prohibit the Company Board from furnishing any information to, or (ii) participate or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide Acquisition Proposal if, or provide access and only to the properties, books or records of any Company Entity to, any Person extent that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (wA) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did Stockholder Meeting shall not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))have occurred, (xB) the Company gives Board, after consultation with independent legal counsel, determines in good faith that such action is necessary for the Parent Company Board to comply with its duties to the notice required by Section 6.2(e)Company's stockholders under applicable Law, (yC) after receiving the advice of its financial advisors, the Company’s Company Board determines in good faith that such proposal constitutesAcquisition Proposal, or if accepted, is reasonably likely to lead tobe consummated taking into account all legal, a Superior Proposalfinancial, regulatory and other aspects of the proposal and the person making the proposal, and (z) the Company’s Board determines believes in good faith, after consultation with its outside legal counsel, that Financial Advisor and after taking into account the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely strategic benefits to be inconsistent with derived from the Company Board’s fiduciary duties under applicable Law; except that (1) Merger and the Company shall not deliver any nonlong-public information to such third party without first entering into term prospects of Parent and its subsidiaries, would, if consummated, result in a confidentiality agreement with such third party on terms no less transaction more favorable to the Company's stockholders than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company than (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) between Parent and (2) subject to applicable Law, the Company. The Company shall make available to the notify Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii)including, an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) conditions thereof and the identity of the Person or group person making any such requestit) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company and shall keep the thereafter inform Parent reasonably informed on a prompt basis of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involveddiscussions or negotiations with such a third party, and any material changes to any the terms thereof and providing to the Parent detailed, written summaries conditions of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal), and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party has ceased and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Developmentterminated, and such proposed adjustment or modificationhas caused its subsidiaries and affiliates, if implementedand their respective officers, would reverse the determination of the Company Board that it make an Adverse Recommendation Changedirectors, then the Company employees, investment bankers, attorneys, accountants and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).other
Appears in 1 contract
Acquisition Proposals. (ab) Except as provided Notwithstanding anything to the contrary in Section 6.1(a) or Section 6.3, nothing contained in this Section 6.2(a) and in Section 6.2(d), Agreement shall prevent the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, or its Board of Directors from: (i) directly taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or indirectly initiate, solicit, knowingly encourage, Rule 14e-2(a) promulgated under the Exchange Act (or facilitate (including by way of furnishing non-public information) any inquiries similar communication to stockholders in connection with respect to, or the making or submission ofamendment of a tender offer or exchange offer), making any proposal that constitutes, “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or would reasonably be expected any similar communications to lead to, the stockholders of the Company) or from making any legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal, or Proposal (provided that neither the Company nor its Board of Directors may take any action that would constitute a Change in Recommendation in respect of an Acquisition Proposal unless permitted by Section 6.1(c); (ii) participate or engage prior to obtaining the Company Requisite Vote, contacting and engaging in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, with any Person that or group and their respective Representatives who has made an Acquisition Proposal or that was not solicited in contemplation material breach of an Section 6.1(a), solely for the purpose of clarifying such Acquisition Proposal. Notwithstanding Proposal and the immediately foregoing sentenceterms thereof; (iii) prior to, at any time prior to but not after, obtaining the Company Required Requisite Vote, the Company providing access to its properties, books and the Company’s Board are permitted records and providing information or data in response to take any actions described a request therefor by a Person or group who has made an Acquisition Proposal that was not initiated, solicited, encouraged or facilitated in clause (ii) violation of this Section 6.2(aAgreement if the Board of Directors (A) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines shall have determined in good faith, after consultation with its outside legal counselcounsel and financial advisors, that such Acquisition Proposal would reasonably be expected to constitute, result in or lead to a Superior Proposal, and (B) has received from the failure Person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that any such access, information or data has previously been provided to participate Parent or is provided to Parent prior to or substantially concurrently with the time such access, information or data is provided to such Person or group; (iv) prior to, but not after, obtaining the Company Requisite Vote, contacting and engaging in such any negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential and their respective Representatives who has made an Acquisition Proposal that was not previously made available to the Parentinitiated, contemporaneously with the delivery of such information to (solicited, encouraged or as promptly as practicable after such information is delivered to) such Person. Nothing contained facilitated in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee violation of this Agreement, Agreement (which negotiations or discussions need not be solely for clarification purposes) if the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company Board of Directors shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines have determined in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).-34-
Appears in 1 contract
Sources: Merger Agreement (Diversified Restaurant Holdings, Inc.)
Acquisition Proposals. (a) Except Seller agrees that, except as provided in expressly permitted by this Section 6.2(a) and in Section 6.2(d)7.8, none of Seller, the Company shall not (Acquired Companies, or the Subsidiaries or their Affiliates nor any of the officers and shall cause directors of Seller, the Company Acquired Companies or the Subsidiaries to not)or their Affiliates will, and shall take such that it will direct and use its reasonable actions best efforts to cause (its, its Affiliates’, the Acquired Companies’ and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directorsSubsidiaries’ employees, investment bankers, lenders, attorneys, accountants, financial advisors, agents, agents and other advisors or representatives (such directors, officers, employees, investment bankers, lenders, attorneys, accountants, agents and other advisors or representatives, collectively, the “Representatives”) not to, directly or indirectly:
(i) directly or indirectly initiate, solicit, knowingly encourage, facilitate or facilitate (including by way of furnishing non-public information) encourage any inquiries with respect to, or the making or submission of, of any proposal or offer that constitutes, or would could reasonably be expected to lead to, an any Acquisition Proposal, or ;
(ii) engage in, continue or otherwise participate or engage in any discussions or negotiations withregarding, furnish or provide any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity Person relating to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding , except to notify such Person of the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) existence of this Section 6.2(a7.8;
(iii) enter into any Contract with respect to a third party any Acquisition Proposal; or
(iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes, or fail to enforce any standstill or confidentiality agreement.
(b) Notwithstanding anything in the foregoing to the contrary, prior to Closing Date, if (w) the Company has received Seller, any Acquired Company, or any Subsidiary receives a written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities 7.8 and Representatives were bound by this Section 6.2(a))), (x) which the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Seller Board determines in good faith that to be bona fide, Seller, the Acquired Companies and the Subsidiaries and its and their Representatives may (i) provide information in response to a request therefor by the Person who has made such proposal constitutes, or is reasonably likely to lead to, a Superior Acquisition Proposal, and (z) but only if Seller, such Acquired Company or such Subsidiary receives from the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish Person so requesting such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a an executed confidentiality agreement with such third party on terms no not less favorable restrictive to the Company other party than those contained in the our Confidentiality Agreement (and prior to disclosing any information to such confidentiality agreement with Person or any of its Affiliates or Representatives in response to such third partyAcquisition Proposal, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable LawSeller, the such Acquired Company shall make or such Subsidiary makes such information available to Buyer (to the Parent any non-public extent such information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was has not been previously made available to the ParentBuyer); (ii) engage or participate in any discussions or negotiations with such Person; or (iii) after having complied with Section 7.8(d), contemporaneously with the delivery of such information approve, recommend, or otherwise declare advisable or propose to approve, recommend or declare advisable (publicly or as promptly as practicable after such information is delivered tootherwise) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosureProposal, in either case if and only to the extent required by applicable Lawthat, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company (A) prior to make an Adverse Recommendation Change other than taking any action described in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not clause (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(ciii) Except as provided in Section 6.2(d)above, the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Seller Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, counsel that the failure to make take such an Adverse Recommendation Change is likely to be inconsistent with action, in light of the Company Board’s Acquisition Proposal and the terms of this Agreement, would constitute a breach of the directors’ fiduciary duties under applicable Law, (ivB) subject in each such case referred to compliance with applicable Lawin clause (i) or (ii) above, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company Seller Board has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination determined in good faith based on the information then available and after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof advisor that the Parent proposes) that the such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (C) in the case referred to in clause (iii) above, the Seller Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that the such Acquisition Proposal is a Superior Proposal and failure to make take such Adverse Recommendation Change is likely to be inconsistent with action would constitute a breach of the Company Board’s directors’ fiduciary duties under applicable Law. If .
(c) The Seller Board and each committee of the Parent proposes Seller Board will not, directly or indirectly:
(i) except as expressly permitted by this Section 7.8, (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Buyer, the Seller Board Recommendation with respect to the Company Equity Transaction and the other transactions contemplated hereby, (B) approve, propose to approve, resolve to approve, recommend or otherwise declare advisable (publicly or otherwise), any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, or (C) fail to publicly reaffirm the Seller Board Recommendation, including by not publicly supporting the Equity Transaction and such proposed adjustment the other transactions contemplated hereby in a director’s individual capacity, within five Business Days after Buyer so requests in writing; or
(ii) except as expressly permitted by, and after compliance with, Section 9.1 hereof, cause or modificationpermit Seller, any Acquired Company or any Subsidiary to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract (other than a confidentiality agreement referred to in Section 7.8(b) entered into in compliance with Section 7.8(b)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, prior to the Closing Date, the Seller Board may withhold, withdraw, qualify or modify the Seller Board Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal that was not solicited, initiated, knowingly facilitated or knowingly encouraged in breach of this Agreement (a “Change of Recommendation”) or may also take action pursuant to Section 9.1, if implementedthe Seller Board determines in good faith based on information then available, would reverse the determination of the Company Board after consultation with outside legal counsel and its financial advisor, that the such Acquisition Proposal constituted is a Superior Proposal and the failure to take such action would constitute a breach of directors’ fiduciary duties under applicable Law; provided, however, that Seller will not effect a Change of Recommendation in connection with a Superior Proposal, then or take any action pursuant to Section 9.1 with respect to a Superior Proposal unless: (i) Seller notifies Buyer in writing, five Business Days in advance, that it intends to effect a Change of Recommendation in connection with a Superior Proposal, or to take action pursuant to Section 9.1 with respect to a Superior Proposal, which notice will specify the Company identity of the party who made such Superior Proposal and Parent shall all of the material terms and conditions of such Superior Proposal and attach the most current version of the agreement reflecting such terms and conditions; (ii) after providing such notice and prior to making such Change of Recommendation in connection with a Superior Proposal, or taking any action pursuant to Section 9.1 with respect to a Superior Proposal, Seller will negotiate in good faith with Buyer during such five Business Day period (to the Parent extent that Buyer desires to implement negotiate) to make such adjustment or modification revisions to the terms hereof andof this Agreement or consider a possible alternative transaction with Buyer so that the Acquisition Proposal that is the subject of the notice ceases to be a Superior Proposal; and (iii) the Seller Board will have considered in good faith any changes to this Agreement offered in writing by Buyer and will have determined in good faith (after consultation with its outside legal counsel and financial advisor) that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Buyer were to be given effect; provided that Seller will not effect a Change of Recommendation in connection with a Superior Proposal, upon implementation or take any action pursuant to Section 9.1 with respect to a Superior Proposal, prior to the time that is five Business Days after it has provided the written notice required by clause (i) above; provided, further, that in the event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, Seller will provide written notice of such adjustment modified Acquisition Proposal and will again comply with this Section 7.8(d), except that the deadline for such new written notice will be reduced to two Business Days (rather than the five Business Days otherwise contemplated by this Section 7.8(d)) and the t▇▇▇ ▇▇▇▇▇▇ will be permitted to effect a Change of Recommendation in connection with a Superior Proposal, or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already madeto take action pursuant to Section 9.1 with respect to a Superior Proposal, will reinstate its recommendation in favor of be reduced to the Merger and time that is two Business Days after it has provided such written notice (rather than the time that is five Business Days otherwise contemplated by this Agreement, as so adjusted or modifiedSection 7.8(d)).
(e) As promptly as practicable after receipt thereof (but Nothing contained in this Section 7.8 will be deemed to prohibit Seller, any event within 24 hours after the Acquired Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquirySubsidiary from complying with its disclosure obligations under applicable U.S. federal or state Law with regard to an Acquisition Proposal; provided, discussionshowever, that if such disclosure does not reaffirm the Seller Board Recommendation or negotiations has the substantive effect of withdrawing or adversely modifying the Seller Board Recommendation, such disclosure will be deemed to be a Change of Recommendation and Buyer will have the right to terminate this Agreement as set forth in Section 9.1. Nothing in this Agreement shall prohibit Seller or the Seller Board from disclosing to Seller’s stockholders a position with respect to any Acquisition Proposala tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that unless such disclosure consists solely of a “stop, look and listen” communication containing only statements contemplated by Rule 14d-9(f) under the material terms of such requestExchange Act, Acquisition Proposal, inquiry, discussions, or negotiations, and (iiSeller shall first comply with Section 7.8(d) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect extent applicable to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentdisclosure.
(f) Immediately after Seller, on behalf of itself and the execution Acquired Companies and delivery hereofSubsidiaries, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to agrees that it will immediately cease and terminate cause to be terminated any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) Proposal and will take the necessary steps to promptly inform the Representatives involved in the Transactions such individuals or entities of the obligations undertaken in this Section 6.2(a) and (ii) 7.8. Seller also agrees that it will promptly request each Person who that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the an acquisition of Seller, any Acquired Company or any portion thereof Subsidiary to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalfbehalf of Seller, any Acquired Company or any Subsidiary or any of their respective Representatives.
(g) Nothing Seller agrees that it will promptly (and, in this Agreement will prohibit any event, within 24 hours) notify Buyer if any proposals or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating offers with respect to an Acquisition Proposal in response to a material adverse development are received by, any non-public information is requested from, or change in circumstances with respect to the Parent Business occurring any discussions or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely negotiations are sought to be inconsistent initiated or continued with, it, any Acquired Company or Subsidiary or any of its and their Representatives, indicating, in connection with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end identity of the three-Business Day period described in Person making the immediately foregoing clause proposal or offer and the material terms and conditions of any proposals or offers (ii)including, the Company Board again makes the determination in good faith after consultation with its outside legal counsel if applicable, copies of any written requests, proposals or offers, including proposed Contracts) and financial advisors thereafter will keep Buyer informed on a current (and taking into account no less than daily basis) of the status of any adjustment such discussions or negotiations. In the event that any party modifies its Acquisition Proposal in any respect, Seller will notify Buyer orally and in writing within 24 hours of receipt of such modification of the fact that such Acquisition Proposal has been modified and the terms hereof of such modification (including, if applicable, copies of any written documentation reflecting such modification). Seller agrees that it, the Parent proposes in writingAcquired Companies and the Subsidiaries will not enter any confidentiality (or similar) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes agreement subsequent to the Company Signing Date that prohibits Seller from providing to Buyer such material terms and conditions and other information. Seller will promptly (and, in any adjustment or modification event, within 24 hours thereafter) notify Buyer of the terms hereof in response to identity of any Person with which Seller, any Acquired Company or any Subsidiary enters into such a Notice of Material Developmentconfidentiality (or similar) agreement.
(h) Without limiting the foregoing, and such proposed adjustment or modification, if implemented, would reverse the determination Seller agrees that any violation of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate restrictions set forth in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation this Section 7.8 by any Representative of such adjustment or modificationSeller, the Company Board Acquired Companies or the Subsidiaries shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor constitute a breach by Seller of the Merger and this Agreement, as so adjusted or modified)Section 7.8.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pioneer Power Solutions, Inc.)
Acquisition Proposals. Neither the Company nor any Subsidiary of the Company nor any of their respective officers, directors or Employees shall, and the Company shall direct and cause its and such Subsidiaries’ officers, directors and Employees not to, directly or indirectly, (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or otherwise take any action to facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal or (b) engage in any negotiations concerning, or facilitate (including by way of furnishing non-public information) provide any inquiries with respect confidential information or data to, or have any discussions with, or afford access to any of the making properties, assets or submission ofbooks and records of the Company or any of its Subsidiaries to, or enter into any agreement, commitment or arrangement with, any proposal that constitutes, or would reasonably be expected Person relating to lead to, an Acquisition Proposal; provided, however, that, so long as the Company has not breached in any material respect any of its obligations under this Section 8.2 or Section 8.3, nothing contained in this Agreement shall prevent the Company, its directors, officers, or Representatives, prior to the approval and adoption of this Agreement and the transaction contemplated hereby at the Company’s Stockholder Meeting, from (i) providing information in response to a request therefor by a third party who has made an unsolicited written bona fide Acquisition Proposal to acquire all of the issued and outstanding Company Stock, or all or substantially all of the Company’s assets, if the Board of Directors of the Company receives from the third party so requesting such information an executed confidentiality agreement and contemporaneously provides such information to Buyer; (ii) participate engaging in any negotiations or engage in discussions or negotiations with, furnish with any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that third party who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (i) above; or (iii) withdrawing or modifying in a manner adverse to Buyer or Merger Sub its recommendation in favor of the Merger and this Agreement or recommending to the stockholders of the Company an Acquisition Proposal described in clause (i) above if, in each such case referred to in clause (i) or clause (ii) above, the Board of this Section 6.2(a) with respect to a third party if (w) Directors of the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith (after consultation with outside legal counsel) that taking such action is required in order to comply with the fiduciary duties of the members of the Board of Directors of the Company under applicable Law, and in each such case referred to in clause (iii) above, (A) the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that taking such action is required in order to comply with the fiduciary duties of the members of the Board of Directors of the Company under applicable Law and (B) the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that such proposal constitutes, or is reasonably likely Acquisition Proposal referred to lead to, in clause (iii) above constitutes a Superior Proposal. The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company or any Subsidiary of the Company, or any of their respective officers, directors or Employees with any parties conducted heretofore with respect to any Acquisition Proposal. The Company shall (y) as promptly as reasonably practicable (but in no event later than the day after receipt) notify Buyer if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any such third party and (z) identify the Company’s Board determines in good faithterms and conditions of any Acquisition Proposal (including any subsequent changes, after consultation with its outside legal counsel, that modifications and amendments thereto) and the failure to participate in such negotiations or discussions or to furnish such information or data to such identity of the third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to making such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such PersonProposal. Nothing contained in this Section 6.2 will Agreement shall prohibit the Company or the Company’s Board of Directors of the Company from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal a tender offer or exchange offer by a third party pursuant to Rule Rules 14d-9 or and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and . During the material terms period from the date of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of this Agreement through the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the partiesEffective Time, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party fromterminate, amend, modify or waive any provisions of, provision of any confidentiality or standstill agreement to which the Company it or any of its Subsidiaries is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parentparty.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in Unless and until this Section 6.2(a) and in Section 6.2(d)Agreement shall have been terminated by either party pursuant to Article VII hereof, the Company shall not (and shall cause take or cause, directly or indirectly, any of the Company Subsidiaries to not)following actions with any party other than Parent, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, Merger Sub or their respective designees: (i) directly or indirectly initiate, solicit, knowingly encourage, initiate or facilitate participate in any negotiations, inquiries or discussions with respect to any offer, indication or proposal to acquire all or more than 20% of its business, assets or capital shares or voting securities whether by merger, consolidation, other business combination, purchase of assets, tender or exchange offer or otherwise (including each of the foregoing, an "Acquisition Proposal"); or (ii) disclose, in connection with an Acquisition Proposal, any information or provide access to its properties, books or records, except as required by way law or pursuant to a governmental request for information. In addition, the Company shall, and shall cause its officers, directors and representatives to, immediately cease any activities of furnishing the type described in (a)(i) and (a)(ii) existing as of the date of this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a) or elsewhere in this Agreement, prior to the Effective Time, the Company may, to the extent the Board of Directors of the Company determines that it would be in the best interests of the Company or its stockholders to do so, participate in discussion or negotiations with, and furnish non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide and afford access to the properties, books books, records, officers, employees and representatives of the Company to any Person, entity or records of any group after such Person, entity or group has delivered to the Company Entity toin writing, any Person that has made an Acquisition Proposal or in contemplation which the Board of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining Directors of the Company Required Votein its good faith reasonable judgment, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) after consultation with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, determines if consummated would be more favorable to the Company’s Company or its stockholders than the transactions contemplated by this Agreement (a "Superior Proposal"). In the event the Company receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this paragraph (b)) will prevent the Board of Directors of the Company from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its stockholders, if the Board determines in good faith that such proposal constitutes, or it is reasonably likely appropriate to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate do so; in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with case, the Board of Directors of the Company Board’s fiduciary duties under applicable Law; except that (1) may withdraw, modify or refrain from making its recommendation of the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable Merger, and, to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Lawextent it does so, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parentmay refrain from calling, contemporaneously with the delivery providing notice of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the Company’s Board from taking vote or written consent of its stockholders to adopt this Agreement and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of may terminate this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as ; provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or however that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise provide Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because 's receipt of a Superior Proposal, including a copy of such material development Superior Proposal (or change in circumstances a description of the significant terms and conditions thereof), within 24 hours of such receipt, (ii) provide Parent written notice of the Company's receipt of an Acquisition Proposal, including a copy of such noticeAcquisition Proposal (or a description of the significant terms and conditions thereof), a “Notice within 48 hours of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; receipt and (iii) at the end provide Parent written notice of the three-Company's intention to execute or enter into an agreement relating to a Superior Proposal at least three Business Day period described Days prior to the Company's execution of or entry into such an agreement. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the immediately foregoing clause (ii)Effective Time, the Company Board again makes the determination may, in good faith after consultation connection with its outside legal counsel a possible Acquisition Proposal, refer any third party to this Section 5.4 and financial advisors (Section 7.2(b) and taking into account any adjustment or modification make a copy of the terms hereof that the Parent proposes in writingthis Section 5.4 and Section 7.2(b) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response available to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)third party.
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) No Alliance Entity shall, and in Section 6.2(d), the Company shall not (and it shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) its Representatives not to, (i) directly or indirectly indirectly, (a) solicit, initiate, solicit, knowingly encourage, or facilitate encourage (including by way of furnishing non-public informationproviding information or assistance), facilitate or induce any Acquisition Proposal, (b) participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any inquiries nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any offer or submission of, any proposal that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, (c) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (iid) participate approve, agree to, accept, endorse or engage in discussions recommend, or negotiations withpropose to approve, furnish agree to, accept, endorse or recommend any non-public information Acquisition Agreement contemplating or data otherwise relating to any Company Entity Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Alliance shall constitute a breach of this Section 7.2 by Alliance.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Alliance or any Company Asset toof its Representatives receives an unsolicited, or provide access to the properties, books or records of any Company Entity to, bona fide written Acquisition Proposal by any Person that has made an Acquisition Proposal or “Group” (as such term is defined in contemplation of an Acquisition Proposal. Notwithstanding Section 13(d) under the immediately foregoing sentence, Exchange Act) at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal Shareholders’ Meeting that did not result from or arise in connection with a breach of this Section 6.2(a7.2(a), whether by any Company Entity Alliance and its Representatives may, prior to (but not after) the Shareholders’ Meeting, take the following actions if the board of directors of Alliance (or any Representative committee thereof) has (as if all Company Entities and Representatives were bound by this Section 6.2(a)))i) determined, (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of in its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and judgment (z) the Company’s Board determines in good faith, after consultation with its Alliance’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to participate in take such negotiations or discussions or actions more likely than not would cause it to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s violate its fiduciary duties under applicable Law; except that , and (1ii) the Company shall not deliver any non-public information obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such third party without first entering into a confidentiality agreement with such third party on Person or “Group” as the terms no less favorable to the Company than those contained in of the Confidentiality Agreement is in each provision with respect to WSFS: (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”A) and furnish information to (2) subject to applicable Law, the Company but only if Alliance shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of have provided such information to WSFS prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position “Group” with respect to an such bona fide written Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”)Proposal.
(c) Except as provided Promptly (but in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to causeno event more than 24 hours) each Company Entity’s Representatives not to, execute or enter into following receipt of any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), Acquisition Proposal or any letter of intent, term sheet, memorandum of understanding, request for nonpublic information or agreement in principle, (i) relating to or any inquiry that could reasonably be expected to lead to any Acquisition Proposal Proposal, Alliance shall advise WSFS in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (other than an Acceptable Confidentiality Agreement including, in circumstances contemplated each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the penultimate sentence Exchange Act) making any such Acquisition Proposal, request or inquiry), and Alliance shall as promptly as practicable provide to WSFS (i) a copy of Section 6.2(a))such Acquisition Proposal, request or inquiry, if in writing, or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any a written summary of the Transactionsmaterial terms of such Acquisition Proposal, request or inquiry, if oral. Alliance shall provide WSFS as promptly as practicable with notice setting forth all such information as is necessary to keep WSFS informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the foregoing set forth in this Section 6.2contrary, at any time prior to obtaining the Company Required VoteShareholders’ Meeting, and subject if Alliance has received a Superior Proposal (after giving effect to the Company’s compliance at all times terms of any revised offer by WSFS pursuant to this Section 7.2(d)), the board of directors of Alliance may, in connection with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, make a Change in the Alliance Recommendation (iii) including, for the Company’s Board determines avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the board of directors of Alliance has determined in good faith, after consultation with its outside legal counsel, that the failure to make take such an Adverse Recommendation Change is action more likely to than not would be inconsistent with a violation of the Company Board’s directors’ fiduciary duties under applicable Law; provided, that the board of directors of Alliance may not take the actions set forth in this Section 7.2(d) unless:
(i) Alliance has complied in all material respects with this Section 7.2;
(ii) Alliance has provided prior written notice to WSFS at least four Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise WSFS that the board of directors of Alliance has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Alliance has and has caused its financial advisors and outside legal counsel to, negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Alliance) a Superior Proposal; and
(iv) subject the board of directors of Alliance has determined in good faith, after considering the results of such negotiations and giving effect to compliance with applicable Lawany proposals, amendments or modifications made or agreed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal. If during the Company provides Notice Period any revisions are made to the Parent three Business Days’ prior Superior Proposal, Alliance shall deliver a new written notice to WSFS and shall comply with the requirements of this Section 7.2 with respect to such new written notice. Notwithstanding any Change in the Alliance Recommendation, this Agreement shall be submitted to the shareholders of Alliance at the Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Alliance of such obligation; provided, that if the board of directors of Alliance shall have effected a Change in the Alliance Recommendation, then the board of directors of Alliance, in connection with the submission of this Agreement to the shareholders of Alliance may submit this Agreement without recommendation (although the resolution adopting this Agreement as of the Company’s date hereof may not be rescinded), in which event the board of directors of Alliance may communicate the basis for its lack of a recommendation to the shareholders of Alliance in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Alliance shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(e) Alliance and Alliance Subsidiaries shall, and Alliance shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than WSFS and its Representatives) that has made or indicated an intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (viii) at not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(f) Nothing contained in this Agreement shall prevent Alliance or its board of directors from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the end Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to the shareholders of Alliance if the three-Business Day period described in the immediately foregoing clause board of directors of Alliance (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification counsel) concludes that its failure to do so more likely than not would be a violation of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law. If Issuance of any such communication shall be deemed a Change in the Parent proposes to Alliance Recommendation unless the Company any adjustment or modification communication includes a reaffirmation of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Alliance Recommendation Change (or, if already made, will reinstate its recommendation in favor of adoption and approval by the Merger and shareholders of Alliance of this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Acquisition Proposals. (a) Except From the date hereof until the earlier of the Effective Time or the termination of this Agreement, and except as provided in expressly permitted by the following provisions of this Section 6.2(a) and in Section 6.2(d)6.6, the Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s nor will it permit any of its subsidiaries to, nor will it authorize or permit any of its or its subsidiaries' respective officers, directors, directors or employees of or any investment bankersbanker, attorneys, accountantsaccountants or other advisors or representatives to, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit, initiate or knowingly encourageencourage the submission of any Acquisition Proposal (as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or facilitate (including by way of furnishing non-public information) furnish to any inquiries person any information with respect to, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or submission of, of any proposal that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal; provided, however, that nothing contained in this Section 6.6(a) shall prohibit the Company Board from furnishing information to, or (ii) participate or engage in entering into discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset toperson that makes an unsolicited bona fide written Acquisition Proposal if, or provide access and only to the properties, books or records of any Company Entity to, any Person extent that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (wA) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did Stockholders Meeting shall not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))have occurred, (xB) the Company gives the Parent the notice required by Section 6.2(e)Board, (y) after receiving consultation with and based upon the advice of its financial advisorsoutside legal counsel, the Company’s Board determines in good faith that such proposal constitutesaction is necessary for the Company Board to comply with its fiduciary duties to its stockholders under applicable Law, or (C) the Company Board, after consultation with its financial advisor, determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to lead be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, or could reasonably be expected to, result in a Superior Proposal, transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL") and (zD) prior to taking such action, the Company’s Company (x) provides reasonable notice to Parent to the effect that the Company is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than the next business day) after its receipt thereof. Thereafter, the Company shall inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of such Acquisition Proposal and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent.
(b) The Company Board will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger unless the Company Board determines in good faith, after consultation with its outside legal counseltaking into account all legal, financial and regulatory aspects, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with do so would constitute a breach by the Company Board’s Board of its fiduciary duties under applicable Law; except , provided, however, the Company Board may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) an Acquisition Proposal unless (i) such an Acquisition Proposal is a Superior Proposal (and the Company first shall have complied with its obligations set forth in Section 8.3(a) and the time period referred to in the last sentence of Section 8.3(a) has expired), and (ii) Parent does not, within five (5) business days of Parent's receipt of the notice specified in Section 6.6(a), make an offer that (1) is at least as favorable to the Company's stockholders as such Superior Proposal. Notwithstanding anything herein to the contrary, the Company shall not deliver be entitled to enter into any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable respect to a Superior Proposal unless and until it has paid Parent the Company than those contained Termination Fee (as defined in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery Section 8.5). The Company's provision of such information to (or as promptly as practicable after such information is delivered tofailure to provide) such Person. any notice to Parent of a Superior Proposal and Parent's making of any additional offer shall not be deemed to waive the Company's obligation to pay the Termination Fee to Parent.
(c) Nothing contained in this Section 6.2 will 6.6 shall prohibit the Company or the Company’s Board from taking and disclosing to the Company’s its stockholders a position with respect to an Acquisition Proposal pursuant to contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosuredisclosure to its stockholders which, in either case to the extent required by applicable Law, including good faith reasonable judgment of the Company Board’s fiduciary duties, based on the advice of outside legal counsel, is required under applicable Law; provided that, except that compliance as otherwise permitted in this Section 6.6, the board of directors of the Company may not withdraw or modify, or propose to withdraw or modify, its position with such rules will respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal. 40 Notwithstanding anything contained in this Agreement to the contrary, any action by the Company Board permitted by, and taken in accordance with, this Section 6.6 shall not constitute a breach of this Agreement by the Company. Nothing in this Section 6.6 shall (i) permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
terminate this Agreement (b) Except except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (iArticle VIII hereof) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), affect any other obligations of the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactionsunder this Agreement.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereofof this Agreement, the Company shall (will, and shall will cause the Company Subsidiaries its subsidiaries, affiliates, officers, directors, employees, investment bankers, attorneys, accountants and other agents to) instruct the Representatives to , cease and terminate any existing activities, discussions, discussions or negotiations with any third parties conducted heretofore with respect to any possible Acquisition ProposalProposal and shall notify each third party that it, or any officer, director, investment advisor, financial advisor, attorney or other representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board no longer seeks the making of any Acquisition Proposal and shall request the return all confidential information heretofore furnished to such person by or on behalf of the Company or any of its subsidiaries. The Company shall (i) agrees that it will take the necessary steps to promptly inform the Representatives involved individuals or entities referred to in the Transactions first sentence hereof of the obligations undertaken in this Section 6.2(a6.6.
(e) and For purposes hereof, the term "ACQUISITION PROPOSAL" means any proposal or offer in writing from any Person (iiother than Parent, Merger Sub or any of their affiliates) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration relating to any merger, consolidation, recapitalization, liquidation or other direct or indirect business combination or reorganization, involving the Company or the issuance or acquisition of acquiring shares of capital stock or other equity securities of the Company representing at least thirty percent (30%) of the outstanding capital stock or other securities of the Company or any portion thereof to return tender or destroy (and certify such destruction exchange offer that if consummated would result in writing by an executive officer any Person, together with all affiliates thereof, beneficially owning shares of such Person) all confidential information heretofore furnished to such Person by capital stock or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with other equity securities of the Company Board’s fiduciary duties under applicable Law representing at least thirty percent (ii30%) subject to compliance with applicable Law, of the Company provides the Parent three Business Days’ prior written notice outstanding capital stock or other securities of the Company’s intention to make public an Adverse Recommendation Change because , or the sale, lease, transfer or other disposition of such material development all or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end substantially all of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification assets of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Company.
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)The Company shall, the Company shall not (and shall cause the Company Subsidiaries to not), its officers and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable best efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution cause its employees, representatives and delivery hereofagents, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate immediately any existing activities, discussions, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall Third Party Transaction (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken as defined in Section 6.2(a5.3(b) hereof). From and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration after the date of acquiring this Agreement, the Company and its subsidiaries will not, and will cause their respective officers and directors, and will use their respective reasonable best efforts to cause their respective employees, representatives, including investment bankers, attorneys and accountants, or other agents retained by or acting for the Company or any portion thereof of its subsidiaries, not (i) to return solicit, directly or destroy through an intermediary, any inquiries with respect to, or the making of any Acquisition Proposal (and certify such destruction as defined in writing by an executive officer of such PersonSection 5.3(b)), or (ii) all except as permitted below, to engage in negotiations or discussions with, or furnish any confidential information heretofore furnished relating to such Person by the Company or on any of its behalf.
subsidiaries to, any Third Party (gas defined in Section 5.3(b)) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect (other than the transactions contemplated hereby). Notwithstanding anything to the Parent Business occurring contrary contained in this Agreement, the Company (and any person referred to above) may furnish information to, and participate in discussions or arising after negotiations with, any Third Party which submits an Acquisition Proposal to the Signing DateCompany, and may waive any provision of any confidentiality or standstill agreement to which it or any of its representatives is a party, if (i) the Company’s 's Board determines of Directors in its good faith judgment by a majority vote, after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its 's outside legal counsel and financial advisors (advisor, determines that such Acquisition Proposal constitutes a Superior Offer and taking into account any adjustment or modification that, based as to legal matters upon the advice of outside legal counsel, the terms hereof that the Parent proposes in writing) that failure to make furnish such an Adverse Recommendation Change is likely information or participate in such discussions or negotiations or waive any provision of any such agreement, could reasonably be expected to be inconsistent with the Company Board’s result in a breach of their fiduciary duties under applicable Law. If law; provided that nothing herein shall in any event prevent the Parent proposes Company's Board of Directors from taking and disclosing to the Company any adjustment or modification of stockholders a position contemplated by Rules 14D-9 and 14e-2 promulgated under the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) Exchange Act with respect to any tender offer or from making such adjustment other disclosures to Company stockholders which, based upon the advice of outside legal counsel, the Board in its good faith judgment determines is required by the fiduciary duties of the Board of Directors under applicable law; and provided further, that the Company shall not enter into a definitive written agreement providing for a Third Party Transaction except concurrently with or modification after the termination of this Agreement in accordance with the terms of this Agreement including, but not limited to, satisfaction of a Company's obligations under Section 7.2 hereof (except with respect to confidentiality agreements, stand still agreements and other similar agreements to the terms hereof and, upon implementation of such adjustment or modification, the extent expressly provided herein). The Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).promptly provide Parent
Appears in 1 contract
Sources: Merger Agreement (FMST Acquisition)
Acquisition Proposals. (a) Except The Company agrees that, except as provided in expressly contemplated by this Section 6.2(a) Agreement, neither it nor any of its Subsidiaries shall, and in Section 6.2(d), the Company shall not (shall, and shall cause the Company its Subsidiaries to not)to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, agents and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly initiate, solicit, solicit or knowingly encourage, encourage or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, Proposal or (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any the Company Entity or any Company Asset of its Subsidiaries or any of their respective assets to, or provide access to the properties, books or records of the Company or any Company Entity of its Subsidiaries to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding anything to the immediately foregoing sentencecontrary in this Agreement, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Company Board are permitted to may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a5.3(a), whether by the Company, any Company Entity of its Subsidiaries or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))of its or their respective Representatives), (x) the Company gives the Parent the notice required by Section 6.2(e5.3(e), (y) after receiving the advice of its financial advisors, the Company’s Company Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is would be likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except , provided that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) ), and (2) subject to applicable Law, provided further that the Company shall make makes available to the Parent any non-public information concerning any the Company Entity or its Subsidiaries that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or Parent as promptly as practicable after such information is delivered to) its delivery to such Person. Nothing contained in this Section 6.2 will 5.3 shall prohibit the Company or the Company’s Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law; provided, including the Company Board’s fiduciary duties; except however, that compliance with such rules will shall not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d5.3(c) or Section 5.3(c).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g)herein, each none of the Company, the Company’s Board, and each Company Board Committee or any committee of the Company Board shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer EntityParent or Merger Sub), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer EntityParent or Merger Sub), the approval, recommendation, recommendation or declaration of advisability by the Company’s Company Board or any Company Board Committee such committee thereof of this Agreement, the Merger, Merger or any Transactionsthe other transactions contemplated by this Agreement, (ii) recommend, adopt, adopt or approve, or propose publicly to recommend, adopt, adopt or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or and (ii), ) being referred to as an “Adverse Recommendation Change”).
) or (ciii) Except as provided in Section 6.2(d), and the Company shall not (shall, and shall cause the Company its Subsidiaries to not)to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives other representatives not to, execute or enter into any Contract (agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (ix) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a5.3(a)) (each an “Acquisition Agreement”), or (iiy) requiring the Company it to abandon, terminate, terminate or fail to consummate the Merger or any of the Transactionsother transaction contemplated by this Agreement.
(dc) Notwithstanding the foregoing set forth in this Section 6.2foregoing, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 5.3 and Section 6.4(a)5.6, with respect to an Acquisition Proposal, the Company’s Company Board is permitted to may make an Adverse Recommendation Change if (and only if) (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a5.3(a), whether by the Company, any Company Entity of its Subsidiaries or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))of its or their respective Representatives) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Company Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is would be likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three five (5) Business Days’ prior written notice of the Company’s its intention to make an Adverse Recommendation Change because of take such Acquisition Proposal action (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must shall include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e5.3(e); except that, if there are provided that any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent shall require a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three two (2) Business Days following the provision end of such new Notice of Acquisition Proposalfive (5) Business Day period (or any extension thereof pursuant to this proviso) provided under this Section 5.3(c), and (v) at the end of the three-five (5) Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposesof this Agreement proposed by Parent) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is would be likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to .
(d) Nothing in this Agreement shall prohibit or restrict the Company any adjustment Board, in circumstances not involving or modification relating to an Acquisition Proposal, from effecting an Adverse Recommendation Change described in clause (i) of the terms hereof Section 5.3(b) if (i) in response to a Notice of Acquisition Proposal, and such proposed adjustment material development or modification, if implemented, would reverse change in circumstances occurring or arising after the determination of date hereof that was neither known to the Company Board that nor reasonably foreseeable at the date of this Agreement (and which change or development does not relate to an Acquisition Proposal constituted a Superior Proposal, then ) the Company and Parent shall negotiate Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change would be likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) the Company has notified Parent to implement in writing, at least five days in advance of such adjustment Adverse Recommendation Change, that it is considering taking such action and specifying in reasonable detail the reasons therefor and (iii) during such five day period, the Company has considered and, at the reasonable request of Parent, engaged in good faith negotiations with Parent regarding, any changes or modification modifications to the terms hereof and, upon implementation and conditions of such adjustment or modification, this Agreement that would allow the Company Board shall not to make an such Adverse Recommendation Change (or, if already made, will reinstate consistent with its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)fiduciary duties.
(e) As The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.3, as promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, discussions or negotiations with respect to any Acquisition Proposal, and the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions, discussions or negotiations, and (ii) the Company shall promptly provide to Parent a detailed, written summary of all of the material terms, provisions, provisions and other information set forth in any materials (including any draft agreements) that received by the Company receives in connection with any Acquisition Proposal (or, at of the Company’s election, a copy thereof) foregoing and the identity of the Person or group making any such request, Acquisition Proposal, Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the parties and price involved, involved and any material changes to any terms and conditions thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, provisions or other information set forth in any amended or additional documents received from or provided to any Person with respect to such an Acquisition Proposal). The Company shall agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall will use its reasonable best efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereofFor purposes of this Agreement, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible “Acquisition Proposal. The Company ” shall mean any bona fide proposal (other than any proposal by Parent or Merger Sub or any of their respective Subsidiaries), whether or not in writing, for the (i) take the necessary steps to promptly inform the Representatives involved in the Transactions direct or indirect acquisition or purchase of a business or assets that constitute 15% or more of the obligations undertaken in Section 6.2(anet revenues, net income or assets (based on the fair market value thereof) of the Company and its Subsidiaries, taken as a whole, (ii) request each direct or indirect acquisition or purchase by any Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration or group of acquiring equity securities or capital stock of any class of the Company representing 15% or more of the total voting power of the Company (or of the surviving parent entity in any portion thereof to return such transaction) or destroy (and certify such destruction in writing by an executive officer of equity securities or capital stock of any class of any Subsidiary of the Company representing 50% or more of the total voting power of such PersonSubsidiary if the business of such Subsidiary constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or (iii) all confidential information heretofore furnished to merger, consolidation, restructuring, transfer of assets or other business combination, sale of shares of capital stock, tender offer, exchange offer, recapitalization, stock repurchase program or other similar transaction that if consummated would result in any Person or group beneficially owning equity securities or capital stock of any class of the Company representing 15% or more of the total voting power of the Company (or of the surviving parent entity in any such Person transaction) or equity securities or capital stock of any class of any Subsidiary of the Company representing 50% or more of the total voting power of such Subsidiary if the business of such Subsidiary constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Agreement. The term “Superior Proposal” shall mean any written Acquisition Proposal in response to purchase (x) 50% or more of the outstanding equity securities of the Company pursuant to a material adverse development tender offer, exchange offer or change merger, or (y) assets of the Company that comprise 50% or more of the revenues and assets (based on the fair market value thereof) of the Company and its Subsidiaries, taken as a whole, in circumstances with respect to each case (A) which a majority of the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Company Board determines in good faith (after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Lawfinancial advisors, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification all financial, legal and regulatory aspects of the Acquisition Proposal, any conditions to and the expected timing of consummation, and any risks of non-consummation, of such Acquisition Proposal) to be more favorable to the Company and its stockholders than the transactions contemplated hereby and any alternative transaction or changes to the terms hereof that the of this Agreement proposed by Parent proposes in writingpursuant to Section 5.3(c), (B) that failure to make such an Adverse Recommendation Change which is reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification consummated on its terms and (C) which is reasonably capable of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)being fully financed.
Appears in 1 contract
Acquisition Proposals. (a1) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to will not), and shall take such reasonable actions to will cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) Affiliates not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or the making engage in any negotiations concerning, or submission ofprovide any confidential information to, or have any discussions with, any proposal that constitutes, or would reasonably be expected to lead person relating to, an any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) participate providing (or engage authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that person who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.2(a6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a)))only to the extent that, (x) in the Company gives the Parent the notice required by Section 6.2(ecase of actions referred to in clause (ii), (y) after receiving the advice of its financial advisors, the Company’s Board of Directors determines in good faith that such proposal constitutesAcquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the case of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company’s Board of Directors, after having consulted with and considered the advice of outside counsel to such Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation, is reasonably likely required in order to lead todischarge the directors’ fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a “Superior Proposal” means any Acquisition Proposal by a third party on terms which the Company’s Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving Parent at least five Business Days to respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than Parent, with respect to any of the foregoing. The Company shall promptly (zwithin 24 hours) advise Parent following the Company’s Board determines in good faithreceipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the person making such Acquisition Proposal), after consultation with its outside legal counsel, that the failure to participate and advise Parent of any developments (including any change in such negotiations or discussions or to furnish such information or data terms) with respect to such third party is likely to be inconsistent with Acquisition Proposal promptly upon the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and occurrence thereof.
(2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 6.07 or any other provision of this Agreement will prohibit the Company or the Company’s Board of Directors from taking and disclosing to notifying any third party that contacts the Company’s stockholders a position with respect to Company on an unsolicited basis after the date hereof concerning an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in obligations under this Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)6.07.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) Except as provided Notwithstanding anything to the contrary contained in this Section 6.2(a8.4, during the period commencing on the date of this Agreement and continuing until 12:01 a.m. (New York City time) and in Section 6.2(don the forty-sixth (46th) day following the date hereof (the “No-Shop Period Start Date”), the Company shall not (and shall cause the Company Subsidiaries to not)and their respective Representatives shall have the right to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly solicit, initiate, solicitfacilitate or encourage any Alternative Transaction Proposal, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries information with respect toto the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable (and, in any event, within twenty-four (24) hours) after such information has been furnished to such Person (or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or its Representatives) and (ii) participate or engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, Alternative Transaction Proposal or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives otherwise cooperate in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making assist or participate in or facilitate any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of or any Acquisition Proposals (including disclosing effort or attempt to make any Alternative Transaction Proposal; provided that, prior to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereofNo-Shop Period Start Date, the Company shall (not, shall cause each Company Subsidiary not to, and shall direct and use commercially reasonable efforts to cause its and their respective Representatives not to, directly or indirectly, take any of the Company Subsidiaries to) instruct actions described in the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall immediately preceding clauses (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request with respect to any Person who is, to the Knowledge of the Company, an Identified Sponsor Investor.
(b) On the No-Shop Period Start Date, the Company shall, shall cause each Company Subsidiary to, and shall direct and use commercially reasonable efforts to cause its and their respective Representatives to (x) immediately cease any solicitation, facilitation, encouragement, discussion, negotiation or cooperation with respect to any Alternative Transaction Proposal and (y) immediately instruct each Person who (other than (1) Parent, its Affiliates, the Identified Sponsor Investors and its and their respective Representatives and (2) as expressly directed in writing by Parent) that has heretofore previously executed a confidentiality agreement in connection with such Person’s consideration of acquiring an Alternative Transaction Proposal to promptly return to the Company or destroy any non-public information previously furnished to such Person or to such Person’s Representatives by or on behalf of the Company or any portion thereof of the Company Subsidiaries and immediately terminate the access of each such Person and its Representatives to return any electronic data room maintained by or destroy on behalf of the Company or any of the Company Subsidiaries. From the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise provided in this Section 8.4, the Company shall not, shall cause each Company Subsidiary not to, and will direct and use commercially reasonable efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage any Alternative Transaction Proposal or (ii) other than with Parent, Merger Sub or their respective Representatives and other than to inform any Person of the provisions of this Section 8.4, (A) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information in connection with, any Alternative Transaction Proposal or (B) enter into any Alternative Transaction Agreement. Notwithstanding the foregoing or any other provision of this Section 8.4 to the contrary, if at any time after the No-Shop Period Start Date and prior to receipt of the Company Stockholder Approval, the Company or any Company Subsidiary receives an Alternative Transaction Proposal that did not result from a material breach of this Section 8.4, the Company and the Company Board may (directly or through their respective Representatives) (A) contact such Person and its advisors for the purpose of clarifying the proposal and any material terms and conditions and likelihood of consummation thereof, so as to determine whether such proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) if the Company Board determines in good faith, after consultation with its legal counsel and financial advisors and based on information then available, that such Alternative Transaction Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board may (x) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and certify its Representatives) pursuant to an executed Acceptable Confidentiality Agreement; provided that a copy of all such destruction information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable (and, in writing by an executive officer of any event, within twenty-four (24) hours) after such Person) all confidential information heretofore has been furnished to such Person (or its Representatives) and (y) participate in discussions or negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding such Alternative Transaction Proposal. Notwithstanding the occurrence of the No-Shop Period Start Date, the Company and its Representatives may continue to engage in the activities described in this Section 8.4(b) with respect to any Exempted Person, including with respect to any amended proposal submitted by or any Exempted Person, so long as such Person continues to be an Exempted Person, following the No-Shop Period Start Date until the earlier of 12:01 a.m. (New York City time) on the one-hundred and sixth (106th) day following the date hereof (the “Cut Off Time”) and the time that such Exempted Person ceases to be an Exempted Person; provided that the Company, each Company Subsidiary, and each of its behalfand their respective Representatives comply in all material respects with the requirements of this Section 8.4, including the information requirements of Section 8.4(g).
(gc) Nothing Except as otherwise provided by this Section 8.4, the Company Board shall not directly or indirectly: (i) (A) withdraw (or qualify, amend or modify in a manner materially adverse to Parent) or publicly propose to withdraw (or qualify, amend or modify in a manner materially adverse to Parent), the Recommendation or fail to include the Recommendation in the Proxy Statement, (B) recommend, adopt, approve, endorse or publicly propose to recommend, adopt, approve or endorse, any Alternative Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Alternative Transaction Proposal subject to Regulation 14D under the Exchange Act, or (D) if an Alternative Transaction Proposal other than an Alternative Transaction Proposal subject to Regulation 14D shall have been publicly announced or disclosed, fail to recommend against such Alternative Transaction Proposal or fail to reaffirm the Recommendation on or prior to the earlier of ten (10) Business Days after such Alternative Transaction Proposal shall have been publicly announced or disclosed or five (5) Business Days prior to the Company Stockholders’ Meeting (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) authorize, cause or permit the Company or any Company Subsidiary to execute or enter into or adopt or approve, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition Contract, option Contract, joint venture Contract, partnership Contract or other similar Contract, arrangement or understanding other than an Acceptable Confidentiality Agreement will prohibit (each, an “Alternative Transaction Agreement”) (A) constituting or restrict that would reasonably be expected to lead to any Alternative Transaction Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Agreement, but subject to the Company’s compliance in all material respects with the other provisions of this Section 8.4 (including Section 8.4(e)), as applicable, at any time prior to obtaining the Company Stockholder Approval, the Company Board may, in response to a Superior Proposal that did not result from effecting a breach of this Section 8.4 or an Intervening Event, make an Adverse Recommendation Change not involving or relating if the Company Board determines in good faith, after consultation with its legal counsel and financial advisors, that the failure to an Acquisition Proposal take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under Applicable Law.
(d) Without limiting Section 8.4(c), in response to an Alternative Transaction Proposal that the Company Board determines in good faith, after consultation with its legal counsel and financial advisors, constitutes a material adverse development or change in circumstances Superior Proposal, the Company may terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(d) and, concurrently with such termination, may enter into an Alternative Transaction Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(d) unless the Company (i) complies with its obligations set forth in this Section 8.4 (including Section 8.4(e)) and (ii) pays, or causes to be paid, to Parent Business occurring the Company Termination Fee payable pursuant to Section 10.3(a)(i) prior to or arising after concurrently with such termination.
(e) Notwithstanding anything to the Signing Datecontrary contained in this Agreement, if the Company Board shall not be entitled to either (x) make an Adverse Recommendation Change pursuant to Section 8.4(c) or (y) terminate this Agreement pursuant to Section 10.1(h) and Section 8.4(d), unless (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely Company shall have provided to be inconsistent with the Company Board’s fiduciary duties under applicable Law Parent four (ii4) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice advising Parent that the Company Board intends to take such action and specifies in reasonable detail the potential reasons therefor and (A) if relating to a Superior Proposal, is in accordance with Section 8.4(g) and (B) if relating to an Intervening Event, reasonably describes the Intervening Event, and (ii) (A) during such four (4) Business Day period, if requested by Parent, the Company shall have engaged, and shall have caused its Representatives to engage, in good faith negotiations with Parent during such notice period, to the extent Parent wishes to negotiate and so long as Parent is negotiating in good faith, to enable Parent to propose revisions to the terms of this Agreement, (B) the Company’s intention Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent during such four (4) Business Day period, (C) (1) with respect to a Superior Proposal, the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisors, that the Superior Proposal would continue to constitute a Superior Proposal if such adjustments to this Agreement were to be given effect and that failure to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely terminate this Agreement would continue to be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed2) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modificationan Intervening Event, the Company Board Board, after consultation with the Company’s legal counsel and financial advisors, shall not have determined in good faith that failure to make an Adverse Recommendation Change would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, and (orD) in the event of any change to (1) any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of a Superior Proposal, or (2) the facts or circumstances relating to an Intervening Event, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above and a new notice period under clause (i) of this proviso shall commence (except that the four (4) Business Day notice period referred to in clauses (i) and (ii) above shall instead be equal to two (2) Business Days) during which time the Company shall be required to comply with the requirements of this Section 8.4(e) anew with respect to such additional notice, including clauses (i) and (ii) above of this Section 8.4(e); and provided that the Company has complied in all material respects with its obligations under this Section 8.4.
(f) Notwithstanding anything to the contrary contained herein, the Company or the Company Board, directly or indirectly through their respective Representatives, shall be permitted to (i) take or disclose any position or disclose any information reasonably required under Applicable Law or in compliance with or otherwise complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company’s stockholders), and to the extent referred to therein, Item 1012(a) of Regulation M-A promulgated under the Exchange Act with respect to any Alternative Transaction Proposal, (ii) make any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to the Company’s stockholders) or take a neutral or no position with respect to any Alternative Transaction Proposal, and (iii) waive any “standstill” or similar provision in order to permit a Person to make an Alternative Transaction Proposal to the Company Board in a confidential manner, if already madeand only if the Company Board shall have determined in good faith, will reinstate after consultation with its recommendation in favor legal counsel and financial advisors, the failure to so waive would be inconsistent with the directors’ fiduciary duties under Applicable Law.
(g) On the No-Shop Period Start Date, the Company shall notify Parent of the Merger number and identity of each of the Exempted Persons from whom the Company or any of its Representatives has received an Alternative Transaction Proposal or any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) who inquired about or requested information in connection with its consideration of any Alternative Transaction Proposal after the execution of this AgreementAgreement and prior to the No-Shop Period Start Date and the material terms and conditions of any such Alternative Transaction Proposal received (including any changes thereto). From and after the No-Shop Period Start Date, as so adjusted the Company shall promptly (and in no event later than twenty-four (24) hours after receipt) notify Parent in writing of any Alternative Transaction Proposal or modifiedany inquiry or request for information relating to the Company or the Company Subsidiaries that would reasonably be expected to lead to an Alternative Transaction Proposal, including the identity of the Person making the Alternative Transaction Proposal and the material terms and conditions of any such Alternative Transaction Proposal (including an unredacted copy of such Alternative Transaction Proposal, or where such Alternative Transaction Proposal is not in writing, a description of the terms thereof). The Company shall keep Parent reasonably informed, on a reasonably current basis, of the status of discussions or negotiations relating to such Alternative Transaction Proposal (including by promptly (and in no event later than twenty-four (24) hours after receipt) providing to Parent copies of any proposals, indications of interest, and/or draft Contracts relating to such Alternative Transaction Proposal).
Appears in 1 contract
Sources: Merger Agreement (Calpine Corp)
Acquisition Proposals. (a) Except as provided Notwithstanding anything to the contrary contained in this Section 6.2(aAgreement, during the period commencing on the date of this Agreement and continuing until 12:01 a.m. (New York City time) and in Section 6.2(don the thirty-first (31st) day following the date hereof (the “No-Shop Period Start Date”), the Company shall not (and shall cause the Company Subsidiaries to not)and their respective Representatives shall have the right to, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not todirectly or indirectly, (i) directly or indirectly solicit, initiate, solicitfacilitate or encourage the making of any Alternative Transaction Proposal, knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries information with respect to the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an executed Acceptable Confidentiality Agreement; provided, that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable after such information has been furnished to such Person (or its Representatives), and (ii) participate in discussions or negotiations with respect to any Alternative Transaction Proposal or otherwise cooperate in connection with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Alternative Transaction Proposal.
(b) From and after the No-Shop Period Start Date until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with its terms, except as otherwise provided in, and subject to the terms and conditions of, this Section 8.4, the Company shall not, and shall cause each Company Subsidiary not to, and will use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage, facilitate or assist the making of any Alternative Transaction Proposal or submission ofany inquiries, any proposal offers or proposals that constitutes, or would could reasonably be expected to lead to, to an Acquisition Proposal, Alternative Transaction Proposal or the consummation thereof or (ii) other than with Parent, Merger Sub or their respective Affiliates and Representatives and other than to inform any Person that the Company is subject to the provisions of this Section 8.4, (A) enter into, continue, knowingly encourage or otherwise participate or engage in any discussions or negotiations withregarding, (B) provide or afford access to its properties, assets, books and records or personnel or (C) furnish to any Person any non-public information or data relating to any Company Entity or any Company Asset toinformation, in each case of clauses (A) through (C), in connection with, or provide access to the properties, books or records of any Company Entity relating to, any Person that has made an Acquisition Alternative Transaction Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentencemaking thereof or any inquiry, at offer or proposal with respect thereto, (iii) execute or enter into any time prior Alternative Transaction Agreement, (iv) fail to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take enforce or grant any actions described in clause (ii) of this Section 6.2(a) waiver or release under any “standstill” or similar agreement with respect to a third party if (w) any class of securities of the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) of the Company gives Subsidiaries to the Parent extent that the notice required by Section 6.2(e)applicable provision of any such agreement prohibits or purports to prohibit a confidential proposal being made to the Company Board, (y) after receiving unless the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to do so would be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law; except that Applicable Law or (1v) authorize, agree or commit to do any of the foregoing. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, but subject to the final sentence of this Section 8.4(b), if at any time after the No-Shop Period Start Date and prior to receipt of the Company shall Stockholder Approval, the Company or any Company Subsidiary receives a written Alternative Transaction Proposal that did not deliver result from a breach of this Section 8.4, the Company and the Company Board may (directly or through their respective Representatives) (A) contact such Person and its advisors for the purpose of clarifying the proposal and any non-public material terms and conditions and likelihood of consummation thereof, so as to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (B) (x) provide and afford access to the properties, assets, books and records and personnel and furnish information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable respect to the Company than those contained in and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement if, and only if, the Company Board determines in good faith after consultation with its legal and financial advisors and based on information then available that such Alternative Transaction Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal; provided, that a copy of all such information not previously provided to Parent (any or its Representatives) is provided to Parent as promptly as reasonably practicable after such confidentiality agreement with information has been furnished to such third party, an “Acceptable Confidentiality Agreement”Person (or its Representatives) and (2y) subject participate in discussions or negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding such Alternative Transaction Proposal. Notwithstanding anything to applicable Lawthe contrary contained in this Section 8.4(b), if there is one or more Exempted Persons on the No-Shop Period Start Date, the Company and the Company Subsidiaries and their respective Representatives may continue to engage in the activities described in Section 8.4(a) from and after the No-Shop Period Start Date with respect to any such Exempted Person, including with respect to any amended proposal submitted by any such Exempted Person, until the time that such Exempted Person ceases to be an Exempted Person.
(c) On the No-Shop Period Start Date, except with respect to any Exempted Person, the Company shall make available immediately cease and cause to be terminated, and shall cause the Parent Company Subsidiaries and use its reasonable best efforts to cause its and their Representatives to immediately cease and cause to be terminated, any non-public information concerning activities, solicitations, discussions or negotiations with any Company Entity that is made available to any Person and its Affiliates and Representatives (other Person or group than the parties and their respective Representatives and designees) in connection with or relating to an Alternative Transaction Proposal, in each case that exists as of the date hereof. The Company also agrees that it will promptly after the No-Shop Period Start Date (and in any actual or potential Acquisition Proposal event within two (2) Business Days thereof) (i) request each Person (other than Parent, Merger Sub and their respective Representatives and designees) that was not previously made available has prior to the Parent, contemporaneously date hereof executed a confidentiality agreement in connection with its consideration of acquiring the delivery Company to return or destroy all confidential information furnished to such Person or any of such information to (its Affiliates or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit Representatives by or on behalf of the Company or any of the Company’s Board from taking and disclosing Company Subsidiaries prior to the Company’s stockholders a position date hereof and (ii) terminate any access to any data room (electronic or otherwise) previously provided to any such Person, its Affiliates or its or their respective Representatives; provided, however, that with respect to Exempted Persons, the request for the destruction or return of confidential information shall be made promptly following such time as such Person ceases to be an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(aExempted Person (and in any event within two (2) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(dBusiness Days thereof).
(bd) Except as otherwise provided in this Section 6.2(d) and in Section 6.2(g), each of the Company8.4, the Company’s Board, and each Company Board Committee (or a committee thereof) shall not not, directly or indirectly, (i) (A) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), Parent or Merger Sub) or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer EntityParent or Merger Sub), the approval, recommendation, recommendation or declaration of advisability of this Agreement and the transactions contemplated by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (iiB) adopt a formal resolution to recommend, adopt, adopt or approve, or publicly propose publicly to recommend, adopt, adopt or approve, any Acquisition Alternative Transaction Proposal, (C) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of the occurrence of a bona fide material event or development following the making of an Alternative Transaction Proposal and after Parent reasonably requests in writing (or, if the Company Stockholders’ Meeting is scheduled to be held within ten (10) Business Days, within one (1) Business Day, if possible, before the Company Stockholders’ Meeting), (D) make any recommendation in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) or (E) fail to include the Company Board Recommendation in the Proxy Statement (any action described in the immediately foregoing clauses this clause (i) or (ii), being referred to as an “Adverse Recommendation Change”).
) or (cii) Except as provided in Section 6.2(d)adopt or approve, or publicly propose to adopt or approve, or cause, authorize or allow the Company shall not (and shall cause the or any Company Subsidiaries Subsidiary to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into into, any Contract (including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), arrangement or any letter of intentunderstanding other than an Acceptable Confidentiality Agreement in accordance with Section 8.4(b) (each, term sheet, memorandum of understanding, or agreement in principle, an “Alternative Transaction Agreement”) (iA) relating to constituting or that could reasonably be expected to lead to or otherwise relates to any Acquisition Alternative Transaction Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (iiB) requiring the Company it to abandon, terminate, terminate or fail to consummate the Merger or any and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, but subject to the Company’s compliance in all material respects with the other provisions of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.28.4, as applicable, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition ProposalStockholder Approval, the Company’s Company Board is permitted may, in response to a Superior Proposal or an Intervening Event, make an Adverse Recommendation Change if the Company Board determines, in good faith, after consultation with its legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under Applicable Law.
(ie) Without limiting Section 8.4(b), in response to a written Acquisition Alternative Transaction Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to 8.4 and that the Company by a third partyBoard determines, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counseland financial advisors, constitutes a Superior Proposal, the Company may terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(e) to, concurrently with such termination, enter into an Alternative Transaction Agreement with respect to such Superior Proposal; provided, however, that the failure Company shall not terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(e) unless the Company (i) complies with its obligations set forth in Section 8.4(f) and (ii) pays, or causes to be paid, to Parent the Company Termination Fee payable pursuant to Section 10.3(a) prior to or concurrently with such termination.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company Board shall not be entitled to either (x) make such an Adverse Recommendation Change is likely pursuant to be inconsistent with Section 8.4 or (y) terminate this Agreement pursuant to Section 10.1(h) and Section 8.4(e), unless (i) the Company Board’s fiduciary duties under applicable Law, (iv) subject shall have provided to compliance with applicable Law, the Company provides the Parent three (3) Business Days’ prior written notice advising Parent that the Company Board intends to take such action, and (A) if relating to a Superior Proposal, such notice shall contain the material terms and conditions of the Company’s intention Superior Proposal that is the basis of the proposed action of the Company Board, including the identity of the Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) making such Alternative Transaction Proposal and a copy of such Alternative Transaction Proposal or (B) if relating to an Intervening Event, such notice shall contain the material facts and circumstances of such Intervening Event and (ii) (A) during such three (3)-Business Day period, if requested by Parent and so long as Parent continues to negotiate in good faith, the Company shall have, and shall have used reasonable best efforts to cause its Representatives to have, engaged in good faith negotiations with Parent regarding any amendment to this Agreement or other agreements contemplated hereby proposed in writing by Parent, (B) the Company Board shall have considered in good faith any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent no later than the third (3rd) Business Day of such three (3)-Business Day period, (C) (1) with respect to a Superior Proposal, the Company Board shall have determined, in good faith, after consultation with outside legal and financial advisors, that the Alternative Transaction Proposal would continue to constitute a Superior Proposal if such adjustments to this Agreement and such other agreements were to be given effect and (2) with respect to an Intervening Event, the Company Board shall have determined in good faith, after consultation with outside legal and financial advisors, that failure to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely would continue to be inconsistent with the Company Board’s directors’ fiduciary duties under applicable Law. If Applicable Law and (D) in the Parent proposes event of any change to the Company (1) any adjustment or modification of the financial terms hereof in response to a Notice (including the form, amount and timing of Acquisition Proposal, and such proposed adjustment payment of consideration) or modification, if implemented, would reverse the determination any other material terms of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then or (2) the Company and Parent shall negotiate in good faith with the Parent facts or circumstances relating to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modificationan Intervening Event, the Company Board shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above and a new notice period under clause (i) of this proviso shall not commence (except that the three (3) Business Day notice period referred to in clauses (i) and (ii) above shall instead be equal to two (2) Business Days) during which time the Company shall be required to comply with the requirements of this Section 8.4(f) anew with respect to such additional notice, including clauses (i) and (ii) of this Section 8.4(f).
(g) Notwithstanding anything to the contrary contained in this Section 8.4, the Company or the Company Board, directly or indirectly through their respective Representatives, shall be permitted to (i) take or disclose any position or disclose any information, in each case, reasonably required under Applicable Law or in compliance with or otherwise complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company’s stockholders) and, to the extent referred to therein, Item 1012(a) of Regulation M-A promulgated under the Exchange Act, in each case, with respect to any Alternative Transaction Proposal, (ii) make any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to the Company’s stockholders) or take a neutral or no position with respect to any Alternative Transaction Proposal, (iii) make any other disclosure to the Company’s stockholders that is reasonably required by Applicable Law; provided, however, that any disclosures permitted under this Section 8.4(g) shall not, in and of themselves, constitute an Adverse Recommendation Change or form a basis for Parent to terminate this Agreement pursuant to Section 10.1(c) and (or, if already made, will reinstate its recommendation iv) waive any “standstill” or similar provision in favor of order to permit a Person to make an Alternative Transaction Proposal to the Merger and this Agreement, as so adjusted or modifiedextent permitted by Section 8.4(b)(iv).
(eh) As promptly as practicable after receipt thereof No later than two (but in any event within 24 hours 2) Business Days after the Company’s receipt thereof)No-Shop Period Start Date, the Company shall notify Parent of the number of Exempted Persons and the material terms and conditions of any Alternative Transaction Proposal received from any Exempted Person (iincluding any changes thereto), which Alternative Transaction Proposal has not been withdrawn. From and after the No-Shop Period Start Date, the Company shall as promptly as reasonably practicable (and in no event later than twenty-four (24) advise hours after receipt) notify Parent in writing of any request for non-public information Alternative Transaction Proposal or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).b
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) instruct its Representatives not to, : (i) directly or indirectly initiate, solicit, or knowingly encourage, encourage or knowingly facilitate (including by way of furnishing non-public providing information) any inquiries with respect toinquiries, proposals or offers, or the making of any submission or submission ofannouncement of any inquiry, any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an to any Acquisition Proposal, or (ii) directly or indirectly engage in, enter into or participate or engage in any discussions or negotiations with, furnish with any Person with respect to any Acquisition Proposal or (iii) provide any non-public information or data relating to any Company Entity or any Company Asset to, or provide afford access to the business, properties, assets, books or records of any the Company Entity to, any Person that has made an (other than Parent, Purchaser, or any designees of Parent or Purchaser) in connection with any Acquisition Proposal Proposal. The Company shall, and shall cause its directors and officers to, and shall direct its other Representatives to, (x) immediately cease any solicitation, discussions, or in contemplation negotiations with any Person (other than Parent, Purchaser, or any designees of an Parent or Purchaser) with respect to any Acquisition Proposal, (y) request the return or destruction of all confidential information provided by or on behalf of the Company to any such Person and (z) terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Voteforegoing, the Company and the Company’s Board are permitted its Representatives may, solely in response to take any actions described in clause (ii) an inquiry or proposal that did not result from a material breach of this Section 6.2(a6.3(a), (A) with respect seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person solely to determine whether such inquiry or proposal constitutes an Acquisition Proposal and (B) inform a third party Person that has made or, to the Knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 6.3.
(b) Notwithstanding Section 6.3(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to the Acceptance Time, (wi) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a material breach of this Section 6.2(a), whether by any Company Entity or any Representative 6.3(a) and (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (xii) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board or a committee thereof determines in good faith faith, after consultation with outside counsel and a financial advisor, that such proposal constitutes, Acquisition Proposal constitutes or is reasonably likely to lead to, to or result in a Superior Proposal, then the Company may (A) furnish information with respect to the Company to the Person making such Acquisition Proposal and its Representatives and (zB) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided, that the Company may only take the actions described in clauses (A) or (B) above if the Company Board determines in good faith, after consultation with outside counsel, that the failure to take any such action would be, or would reasonably be expected to be, inconsistent with its fiduciary duties under applicable Law; provided, further, that (1) the Company’s Company shall not, and shall instruct its Representatives not to, disclose any material non-public information to such Person unless the Company has, or first enters into, a confidentiality agreement with such Person with terms governing confidentiality that, taken as a whole, are not materially less restrictive to the other Person than those contained in the Confidentiality Agreement, and (2) the Company shall, concurrently therewith or as promptly as reasonably practicable thereafter, and in any event within one (1) Business Day, provide or make available to Parent any material non-public information concerning the Company provided or made available to such other Person that was not previously provided or made available to Parent and Purchaser. The Company shall not, directly or indirectly, release any Person from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement to which the Company is a party; provided, that if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in take such negotiations action would be, or discussions or would reasonably be expected to furnish such information or data to such third party is likely to be be, inconsistent with the Company Board’s its fiduciary duties under applicable Law; except , the Company may waive any such standstill provision solely to the extent necessary to permit the applicable Person (if such Person has not been solicited in breach of this Section 6.3) to make, on a confidential basis to the Company Board, an Acquisition Proposal, conditioned upon such Person agreeing that (1) the Company shall not deliver be prohibited from providing any non-public information to Parent (including regarding any such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to Acquisition Proposal) in accordance with, and otherwise complying with, this Section 6.3.
(c) The Company shall promptly (and in any event within one (1) Business Day) notify Parent in writing (including by email) of the receipt by the Company than those contained of any Acquisition Proposal, inquiry, request for information or other indication by any Person that it is considering making an Acquisition Proposal. The Company shall provide Parent promptly (and in the Confidentiality Agreement (any event within such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and two (2) subject to applicable Law, Business Day period) the Company shall make available to the Parent material terms and conditions of any non-public information concerning any Company Entity that is made available to any other Person such inquiry or group in connection with any actual or potential Acquisition Proposal that was not previously made available to (including any subsequent amendments, modifications or supplements thereto) and the Parent, contemporaneously with identity of the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from Person making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)inquiry or Acquisition Proposal.
(bd) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, The Company Board and each Company Board Committee committee thereof shall not (i) withdraw or withhold (or amend or modify in a manner adverse not, subject to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee terms and conditions of this Agreement, the Merger, (i) approve or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to approve or recommend, adoptor authorize, cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or approvesimilar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with Section 6.3(b)) relating to, or that would reasonably be expected to lead to, any Acquisition Proposal (any action described in the immediately foregoing clauses (ian “Alternative Acquisition Agreement”) or (ii), an “Adverse Recommendation Change”)) make a Change of Board Recommendation.
(ce) Except as provided in Notwithstanding Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause6.3(d) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter other provision of intentthis Agreement, term sheet, memorandum of understanding, or agreement in principle, prior to the Acceptance Time:
(i) relating the Company may terminate this Agreement to or that could reasonably be expected to lead to any enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a material breach of Section 6.2(a)6.3(a) and that the Company Board or a committee thereof determines in good faith, whether by any after consultation with outside counsel, constitutes a Superior Proposal, (B) the Company Entity has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to committee thereof determines in good faith that the Company by a third party, and such Acquisition Proposal that is not withdrawnsubject of the Determination Notice continues to constitute a Superior Proposal and that the failure to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, after consultation with outside counsel and taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period;
(ii) the Company’s Company Board or a committee thereof may make a Change of Board Recommendation if (A) the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.3(a), and the Company Board or a committee thereof determines in good faith faith, after consultation with its legal and financial advisors outside counsel, that such the Acquisition Proposal constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation and (C) no earlier than the end of the Notice Period, the Company Board or a committee thereof determines in good faith that the failure to make a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal, after consultation with outside counsel and taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period; and
(iii) other than in connection with an Acquisition Proposal, the Company’s Company Board or a committee thereof may make a Change of Board Recommendation in response to an Intervening Event if (A) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation and (B) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith, after consultation with outside counsel and considering the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(iv) The provisions of this Section 6.3(e) apply to any material amendment to the financial terms of any applicable Superior Proposal with respect to Section 6.3(e)(i) and Section 6.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C) as the case may be. During the Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential changes to this Agreement in such a manner that would eliminate the need for taking the actions set forth in Sections 6.3(e)(i)-(ii) (and in respect of a Superior Proposal, would cause such Superior Proposal to no longer constitute a Superior Proposal).
(f) Nothing contained in this Agreement prohibits (i) the Company Board or a committee thereof from (A) taking and disclosing to the holders of Shares a position contemplated by Rule 14e 2(a) and Rule 14d-9 promulgated under the Exchange Act or (B) making any public statement if the Company Board or a committee thereof determines in good faith, after consultation with outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely statement would reasonably be expected to be inconsistent with the Company Board’s its fiduciary duties under applicable LawLaw or (ii) the Company or the Company Board from making any disclosure required under the Exchange Act; provided, (iv) subject to that any such action that would otherwise constitute a Change of Board Recommendation shall be made only in compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal Section 6.3(d) and Section 6.3(e) (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereofthat: (x) any “stop, which notice must include look and listen” letter or similar communication limited to the information with respect to such Acquisition Proposal that is specified described in Section 6.2(e); except that, if there are Rule 14d-9(f) under the Exchange Act and (y) any material revisions disclosure of information to the Acquisition Proposal (relative to the terms holders of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof Shares that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after only describes the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any an Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations and the operation of this Agreement with respect to any Acquisition Proposal, thereto and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent contains a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) statement that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, Board has not effected a copy thereof) and the identity Change of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company Board Recommendation shall keep the Parent reasonably informed be deemed not to be a Change of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition ProposalBoard Recommendation). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in The Company acknowledges and agrees that, for purposes of determining whether a breach of this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable LawSection 6.3 has occurred, the Company provides the Parent three Business Days’ prior written notice actions of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change directors and Representatives acting in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination their authorized capacities on behalf of the Company Board that it make an Adverse Recommendation Changeshall be deemed to be the actions of the Company, then and the Company shall be responsible for any breach of this Section 6.3 by its directors and Parent shall negotiate Representatives acting in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor their authorized capacities on behalf of the Merger and this Agreement, as so adjusted or modified)Company.
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to not), and shall take such use its reasonable actions best efforts to cause (its Subsidiaries and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its and their respective officers, directors, employees, representatives (including investment bankers, attorneysattorneys and accountants), accountants, financial advisors, agents, agents and other representatives (collectively, the “Representatives”) Affiliates not to, (i) directly or indirectly initiateindirectly, encourage, solicit, knowingly encourage, initiate or facilitate (including by participate in any way of furnishing non-public information) in any inquiries discussions or negotiations with respect to, or the making or submission of, provide any proposal that constitutesinformation, or would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate or engage in discussions or negotiations with, furnish afford any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of the Company or any Company Entity toof its Subsidiaries, or otherwise take any action to assist or facilitate, any Person or group in respect of, any Acquisition Proposal (as defined below). Notwithstanding the foregoing and subject to compliance with Section 6.02(c) and the prior execution by such Person or group of a confidentiality agreement in no material respect less favorable to the Company than the terms of the Confidentiality Agreement (except that such confidentiality agreement need not contain a standstill provision), the Company may furnish information to or enter into discussions or negotiations with respect to an Acquisition Proposal with any Person or group that has made an unsolicited bona fide Acquisition Proposal or in contemplation that the Board of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining Directors of the Company Required Vote, the Company reasonably determines is likely to result in a Superior Proposal and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal that did not result from a breach of this Section 6.2(a)6.02(a) if, whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) only to the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisorsextent that, the Board of Directors of the Company’s Board , after consultation with outside legal counsel to the Company, determines in good faith that such proposal constitutes, or is failure to do so would be reasonably likely to lead result in a breach of the fiduciary duties of the Board of Directors of the Company under applicable law.
(b) The Company will promptly (and in any event within 36 hours) notify Parent, orally and in writing, if any such information is requested or any such negotiations or discussions are sought to be initiated and will promptly communicate to Parent the identity of the Person or group making such request or inquiry (the “Potential Acquiror”) and any other terms of such request, inquiry or Acquisition Proposal. If, in accordance with the terms of this Section 6.02, the Company (or any of its Subsidiaries or its or their respective officers, directors, employees, representatives, agents or Affiliates) participates in discussions or negotiations with, or provides information to, a Potential Acquiror, the Company will keep Parent advised on a current basis of any significant developments with respect thereto.
(c) The Company will, and will use its reasonable best efforts to cause its Subsidiaries and its and their respective officers, directors, employees, representatives, agents and Affiliates to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any Persons other than Parent, Merger Sub or any of their respective Affiliates or Associates conducted prior to the date hereof with respect to any Acquisition Proposal.
(d) Unless and until this Agreement has been terminated in accordance with Article VIII, the Company shall not (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation of the Merger as set forth in Section 6.01 unless the Board of Directors of the Company, after consultation with outside legal counsel to the Company, determines in good faith that the failure to do so would be reasonably likely to result in a breach of the fiduciary duties of the Board of Directors of the Company under applicable law, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iii) redeem the Rights or amend, or take any other action with respect to, the Rights Agreement to facilitate any Acquisition Proposal or (iv) enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal (other than a confidentiality agreement meeting the criteria described in Section 6.02(a)). Notwithstanding the foregoing, in the event that, prior to the adoption of this Agreement by the stockholders of the Company, the Board of Directors of the Company receives a Superior Proposal, and (z) the Company’s Board of Directors of the Company may, if it determines in good faith, by resolution duly adopted after consultation with its outside legal counselcounsel to the Company, that the failure to participate do so would be reasonably likely to result in a breach of the fiduciary duties of the Board of Directors of the Company under applicable law, approve or recommend such negotiations Superior Proposal and terminate this Agreement as permitted pursuant to the terms of Section 8.03(b) (and, at its option, concurrently with or discussions or immediately after such termination cause the Company to furnish such information or data enter into a definitive agreement with respect to such Superior Proposal), but only at a time that is after the third party is likely Business Day following Parent’s receipt of written notice from the Company advising Parent that the Board of Directors has received a Superior Proposal and providing Parent with the identity of the Potential Acquiror and the terms of such Superior Proposal (attaching, if in writing, the most current version of such proposal or agreement), with the intent of enabling Parent to match such proposal and to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected. Without limiting any other rights of Parent and Merger Sub under this Agreement in respect of any such action, any withdrawal or modification by the Company of the approval or recommendation of the Merger or any termination of this Agreement shall not have any effect on the approvals of, and other actions referred to herein for the purpose of causing Section 203 of the DGCL, any other takeover statute, and the Rights Agreement to be inconsistent with inapplicable to, this Agreement and the Company Board’s fiduciary duties under applicable Law; except that transactions contemplated hereby, which approvals and actions are irrevocable.
(1e) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will 6.02 shall prohibit the Company or the Company’s its Board of Directors from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal a tender offer by a third party pursuant to Rule Rules 14d-9 or and 14e-2(a) promulgated under the Exchange Act or from taking any action or making any similar disclosure, in either case to the extent disclosure required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d)law.
(bf) Except as provided For purposes of this Agreement, (i) “Acquisition Proposal” means any inquiry, offer or proposal, or any indication of interest in Section 6.2(dmaking an offer or proposal, made by a Person or group at any time which is structured to permit such Person or group to acquire beneficial ownership of at least 20% of the assets of, or at least 20% of the equity interest in, or businesses of, the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction, including any single or multi-step transaction or series of related transactions, in each case other than the Merger and (ii) “Superior Proposal” means any unsolicited, bona fide Acquisition Proposal that (a) if consummated, would result in the third party making such proposal (or, in the case of a direct merger between such third party and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (istockholders of such third party) withdraw acquiring all of the Shares or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), all of the approval, recommendation, or declaration voting power of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not and (and shall cause b) the Board of Directors of the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines has determined in good faith (after consultation with its legal and financial advisors that such and taking into account all the terms and conditions of the Acquisition Proposal constitutes a Superior Proposal, (iii) and this Agreement deemed relevant by the Board of Directors of the Company’s Board determines in good faith, after consultation with its outside legal counselincluding any break-up fees, that expense reimbursement provisions, conditions to and expected timing and risks of consummation, and the failure ability of such third party to make obtain financing for the Acquisition Proposal and taking into account all other legal, financial, regulatory and other aspects of such an Adverse Recommendation Change proposal) is likely more favorable to be inconsistent with the Company Board’s Persons to whom it owes fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, laws than the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Merger.
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) take the necessary steps to promptly inform the Representatives involved in the Transactions of the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
Appears in 1 contract
Sources: Merger Agreement (Dial Corp /New/)
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the The Company shall not (and shall cause the Company Subsidiaries to agrees that it will not), and shall take such will cause its Subsidiaries and use its reasonable actions best efforts to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s their officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “"Representatives”") not to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourageencourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or facilitate (including by way iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal, except to notify a person that has made or, to the knowledge of furnishing non-public information) the Company, is making any inquiries with respect to, or the making or submission of, any proposal that constitutes, or would reasonably be expected to lead tois considering making, an Acquisition Proposal, or (ii) participate or engage of the existence of the provisions of this Section 6.12(a); provided, that, prior to the adoption of this Agreement by the stockholders of the Company by the Requisite Company Vote, in discussions or negotiations withthe event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish any non-public or cause to be furnished nonpublic information or data relating to any Company Entity and participate in such negotiations or any Company Asset to, or provide access discussions to the properties, books or records extent that its Board of any Company Entity to, any Person that has made an Acquisition Proposal or Directors concludes in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause good faith (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposaloutside counsel, and (zwith respect to financial matters, its financial advisor) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate take such actions would be more likely than not to result in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s a violation of its fiduciary duties under applicable Lawlaw; except that (1) provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall not deliver any non-public information to such third party without first entering have entered into a confidentiality agreement with such third party on terms no less favorable to the Company it than those contained in the Confidentiality Agreement (any such Agreement, which confidentiality agreement with shall not provide such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection person with any actual or potential Acquisition Proposal that was not previously made available exclusive right to the Parent, contemporaneously negotiate with the delivery Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position Agreement with any person other than Parent with respect to an any Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(aProposal. The Company will promptly (within twenty-four (24) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change other than in accordance with Section 6.2(d).
(bhours) Except as provided in Section 6.2(d) and in Section 6.2(g), each advise Parent following receipt of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that inquiry which could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the substance thereof (including the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person person making such inquiry or group making any such request, Acquisition Proposal), or inquiry or with whom any discussions or negotiations are taking place. The Company shall and will keep the Parent reasonably informed of the status apprised of any Acquisition Proposals (related developments, discussions and negotiations on a current basis, including disclosing any amendments to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all or revisions of the material terms, provisions, terms of such inquiry or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, "Acquisition Proposal" shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) take any acquisition or purchase, direct or indirect, of 25% or more of the necessary steps to promptly inform consolidated assets of the Representatives involved Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the Transactions aggregate, constitute more than 25% of the obligations undertaken in Section 6.2(a) and consolidated assets of the Company, (ii) request each Person who has heretofore executed any tender offer (including a confidentiality agreement self-tender offer) or exchange offer that, if consummated, would result in connection with such Person’s consideration third party beneficially owning 25% or more of acquiring any class of equity or voting securities of the Company or any portion thereof to return its Subsidiaries whose assets, individually or destroy (and certify such destruction in writing by an executive officer the aggregate, constitute more than 25% of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice consolidated assets of the Company’s intention to make public an Adverse Recommendation Change because of such material development , or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the end Company or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification consolidated assets of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Company.
Appears in 1 contract
Acquisition Proposals. (a) Except At any time prior to obtaining the approval of Company shareholders as provided in this Section 6.2(a) and in Section 6.2(d4.1 ("Shareholder Approval"), neither the Company shall not (and shall cause the Company Subsidiaries to not)Company's Board of Directors nor a special committee thereof may, and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial directly or indirectly through advisors, agents, and agents or other representatives (collectively, the “Representatives”) not tointermediaries, (i) directly or indirectly initiate, solicit, encourage or intentionally and knowingly encourage, or facilitate (including by way of furnishing non-public information) any inquiries with respect to, or the making or submission of, any proposal that constitutesAcquisition Proposal, or would reasonably be expected to lead to, engage in negotiations or discussions with any Third Party that has made an Acquisition Proposal, or (ii) participate furnish to any Third Party in connection with a potential Acquisition Proposal nonpublic information relating to the Company or any of its Subsidiaries; provided, however, that the Company may provide nonpublic information to a Third Party and may engage in negotiations or discussions with a Third Party in connection with a potential Acquisition Proposal if (1) such Third Party reasonably appears to have, or negotiations withto have the ability to obtain, furnish any adequate funding to effect a Superior Proposal, (2) such Third Party enters into a confidentiality agreement with terms no less favorable to the Company than the Confidentiality Agreement, (3) the Board of Directors determines in good faith after consultation with outside legal counsel and outside financial advisors that the failure to take such action would be reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law and (4) the Company simultaneously provides to Parent (x) copies of such nonpublic information provided to such Third Party and not previously provided to Parent (for avoidance of doubt, it being understood that non-public information provided to such Third Party in a different form or data relating format as such information has been provided to any Parent shall be deemed, for purposes of this Section 4.4(a), to have not been previously provided to Parent) and (y) a list of such nonpublic information previously provided to Parent that has been provided to such Third Party. Except as expressly permitted by Section 4.4(b), neither the Company's Board of Directors nor a special committee thereof shall (i) approve or cause or permit the Company Entity or any Company Asset Subsidiary to enter into any letter of intent, agreement in principle, definitive agreement or similar agreement (other than a confidentiality agreement) constituting or relating to, or provide access which is intended to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a written Acquisition Proposal from such third party (and such Acquisition Proposal did not result from a breach of this Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board determines in good faith that such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; except that (1) the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable to the Company than those contained in the Confidentiality Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make (an Adverse Recommendation Change other than in accordance with Section 6.2(d"Acquisition Agreement").
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) approve or recommend, adopt, or approve, or propose publicly to approve or recommend, adopt, or approve, any Acquisition Agreement or Acquisition Proposal or (any action described iii) agree or resolve to take actions set forth in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 sentence. The Company agrees that it will immediately cease and Section 6.4(a), with respect to an Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely cause to be inconsistent with the Company Board’s fiduciary duties under applicable Lawterminated any existing activities, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal that is specified in Section 6.2(e); except that, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent), then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, discussions or negotiations with any Third Party conducted heretofore with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its reasonable efforts to enforce any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall (i) agrees that it will take the necessary steps to promptly inform the Representatives involved officers, directors, employees and representatives of the Company and the Company Subsidiaries of the obligation undertaken in the Transactions foregoing sentence, and shall promptly request the return or destruction of all information and materials provided to any Third Party prior to the obligations undertaken in Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring date hereof by the Company, the Company Subsidiaries or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit or restrict the Company’s Board from effecting an Adverse Recommendation Change not involving or relating to an Acquisition Proposal in response to a material adverse development or change in circumstances their representatives with respect to the Parent Business occurring consideration or arising after making of any Acquisition Proposal.
(b) Notwithstanding the Signing Dateforegoing, if if, at any time prior to obtaining Shareholder Approval, the Company receives a Superior Proposal, the Board of Directors or a special committee thereof (or the Company at the direction of the Board of Directors or a special committee thereof) may, during such period, in response to such Superior Proposal, (i) approve or cause the Company to enter into an Acquisition Agreement with respect to such Superior Proposal, (ii) recommend such Superior Proposal to the Company’s 's shareholders, (iii) withdraw, modify or refrain from making its recommendation of the transactions contemplated by this Agreement, and (iv) terminate this Agreement in accordance with Section 6.1(h), in each case if the Board of Directors determines in good faith after consultation with its outside legal counsel and outside financial advisors that not making such Adverse Recommendation Change action or omission to act is likely necessary in order for the Company's directors to be inconsistent comply with the Company Board’s their respective fiduciary duties under applicable Law (ii) subject to compliance with applicable Lawlaw; provided, that the Company provides the shall (x) provide Parent three Business Days’ prior written notice of the Company’s 's receipt of a Superior Proposal (specifying the financial and other material terms and conditions of such Superior Proposal) together with the Company's intention to make public execute or enter into an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) Acquisition Agreement with respect to such adjustment or modification Superior Proposal (a "Notice of Superior Proposal") at least five (5) Business Days prior to the taking of any such actions in subsections (i) through (iv) above (it being understood that any amendment to the price or material terms hereof andof a Superior Proposal shall require an additional Notice of Superior Proposal and an additional three (3) Business Day period thereafter to the extent permitted under applicable law) and Parent has not proposed adjustments in the terms and conditions of this Agreement which would cause the relevant Acquisition Proposal to no longer be a Superior Proposal and (y) pay to Parent prior to or within two (2) Business Days following any such termination of this Agreement, upon implementation the Termination Fee and Rothschild Termination Fee.
(c) In addition to the obligations of such adjustment or modificationthe Company set forth in paragraphs (a) and (b) of this Section 4.4, the Company Board shall not make an Adverse Recommendation Change (orpromptly, if already made, will reinstate its recommendation and in favor of the Merger and this Agreement, as so adjusted or modified).any event within twenty-four
Appears in 1 contract
Acquisition Proposals. (a) Except as provided in this Section 6.2(a) and in Section 6.2(d)▇▇▇▇▇ agrees that it shall not, the Company shall not (and shall cause the Company its Subsidiaries to not), and shall take such reasonable actions to cause (its and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s its Subsidiaries’ officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, advisors and other representatives (collectively, the “Representatives”) Affiliates not to, (i) directly solicit or indirectly initiate, solicit, knowingly encourage, encourage inquiries or facilitate (including by way of furnishing non-public information) any inquiries proposals with respect to, or the making engage in any negotiations concerning, or submission ofprovide any confidential information to, or have any discussions with, any proposal Person relating to, any Acquisition Proposal; provided, however, that constitutesnothing contained in this Agreement shall prevent the ▇▇▇▇▇ Board from (a) making any disclosure to its shareholders if, in the good faith judgment of the ▇▇▇▇▇ Board, after having consulted with and considered the advice of outside counsel to the ▇▇▇▇▇ Board, failure so to disclose would be a breach of its fiduciary duties under applicable Law; provided further, however, that any such disclosure regarding an Acquisition Proposal shall be deemed to be a Change in Recommendation unless the ▇▇▇▇▇ Board reaffirms the ▇▇▇▇▇ Recommendation; (b) before the date of the ▇▇▇▇▇ Meeting, providing (or authorizing the provision of) information to, or would reasonably be expected to lead to, an Acquisition Proposal, engaging in (or (iiauthorizing) participate or engage in such discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that who has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if (w) the Company has received a unsolicited bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal received after the date of this Agreement that did not result from a breach of this Section 6.2(a)6.06; or (c) recommending such an Acquisition Proposal to its shareholders if and only to the extent that, whether by any Company Entity or any Representative in the case of actions referred to in clause (as if all Company Entities and Representatives were bound by this Section 6.2(a))b) and/or (c), (xi) such Acquisition Proposal is, or is reasonably expected to lead to, a Superior Proposal, (ii) the Company gives ▇▇▇▇▇ Board, after having consulted with and considered the Parent advice of outside counsel to the notice ▇▇▇▇▇ Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation is required in order to discharge the directors’ fiduciary duties to ▇▇▇▇▇ and its shareholders in accordance with applicable Law, and (iii) ▇▇▇▇▇ receives from such Person a confidentiality agreement substantially in the form of the Confidentiality Agreement. For purposes of this Agreement, a “Superior Proposal” means any Acquisition Proposal by Section 6.2(e)a third party on terms that the ▇▇▇▇▇ Board determines in its good faith judgment, (y) after receiving the advice of its financial advisors, to be materially more favorable from a financial point of view to ▇▇▇▇▇ and its shareholders than the Company’s Board determines in good faith that Parent Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal constitutes, or is reasonably likely to lead to, a Superior Proposal, and (z) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party is likely to be inconsistent with the Company Board’s fiduciary duties any other relevant factors permitted under applicable Law; except that (1) the Company . ▇▇▇▇▇ also shall not deliver immediately cease and cause to be terminated any non-public information to such third party without first entering into a confidentiality agreement with such third party on terms no less favorable activities, discussions or negotiations conducted prior to the Company than those contained in the Confidentiality date of this Agreement (any such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such rules will not permit the Company to make an Adverse Recommendation Change parties other than in accordance with Section 6.2(d).
(b) Except as provided in Section 6.2(d) and in Section 6.2(g), each of the Company, the Company’s Board, and each Company Board Committee shall not (i) withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), or publicly propose to withdraw or withhold (or amend or modify in a manner adverse to any Buyer Entity), the approval, recommendation, or declaration of advisability by the Company’s Board or any Company Board Committee of this Agreement, the Merger, or any Transactions, (ii) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve, any Acquisition Proposal (any action described in the immediately foregoing clauses (i) or (ii), an “Adverse Recommendation Change”).
(c) Except as provided in Section 6.2(d), the Company shall not (and shall cause the Company Subsidiaries to not), and shall take reasonable actions to cause (and shall cause the Company Subsidiaries to take reasonable actions to cause) each Company Entity’s Representatives not to, execute or enter into any Contract (including any merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement), or any letter of intent, term sheet, memorandum of understanding, or agreement in principle, (i) relating to or that could reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the penultimate sentence of Section 6.2(a)), or (ii) requiring the Company to abandon, terminate, or fail to consummate the Merger or any of the Transactions.
(d) Notwithstanding the foregoing set forth in this Section 6.2, at any time prior to obtaining the Company Required Vote, and subject to the Company’s compliance at all times with the provisions of this Section 6.2 and Section 6.4(a)Sky, with respect to an any of the foregoing. ▇▇▇▇▇ shall promptly (within three business days) advise Sky following the receipt by ▇▇▇▇▇ of any Acquisition Proposal and the material terms thereof (including the identity of the Person making such Acquisition Proposal, the Company’s Board is permitted to make an Adverse Recommendation Change if (i) a written Acquisition Proposal (that did not result from a breach of Section 6.2(a), whether by and advise Sky of any Company Entity or developments (including any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(d))change in such terms) is made to the Company by a third party, and such Acquisition Proposal is not withdrawn, (ii) the Company’s Board determines in good faith after consultation with its legal and financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (iii) the Company’s Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (iv) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make an Adverse Recommendation Change because of such Acquisition Proposal (such notice, a “Notice of Acquisition Proposal”), it being understood that a Notice of Acquisition Proposal does not in itself institute an Adverse Recommendation Change for purposes hereof, which notice must include the information with respect to such Acquisition Proposal promptly upon the occurrence thereof. ▇▇▇▇▇ agrees that is specified in Section 6.2(e); except thatneither it nor any of its Subsidiaries shall terminate, if there are any material revisions to the Acquisition Proposal (relative to the terms of the Acquisition Proposal as set forth in the Notice of Acquisition Proposal as provided to the Parent)amend, then the Company must provide to the Parent a new Notice of Acquisition Proposal and, if the Company has not made an Adverse Recommendation Change, and subject to compliance with applicable Law, an additional three Business Days following the provision of such new Notice of Acquisition Proposal, and (v) at the end of the three-Business Day period described in the immediately foregoing clause (iv) (including any extension of such period required thereunder), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes) that the Acquisition Proposal constitutes a Superior Proposal and that the failure to make such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Acquisition Proposal, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that the Acquisition Proposal constituted a Superior Proposal, then the Company and Parent shall negotiate in good faith with the Parent to implement such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified).
(e) As promptly as practicable after receipt thereof (but in any event within 24 hours after the Company’s receipt thereof), the Company shall (i) advise Parent in writing of any request for non-public information or any Acquisition Proposal received from any Person, or any inquiry, discussions, or negotiations with respect to any Acquisition Proposal, and the material terms of such request, Acquisition Proposal, inquiry, discussions, or negotiations, and (ii) promptly provide to Parent a detailed, written summary of all of the material terms, provisions, and other information set forth in any materials (including any draft agreements) that the Company receives in connection with any Acquisition Proposal (or, at the Company’s election, a copy thereof) and the identity of the Person or group making any such request, Acquisition Proposal, or inquiry or with whom any discussions or negotiations are taking place. The Company shall keep the Parent reasonably informed of the status of any Acquisition Proposals (including disclosing to the Parent the identity of the parties, the price involved, and any material changes to any terms thereof and providing to the Parent detailed, written summaries of all of the material terms, provisions, or other information set forth in any amended or additional documents received from or provided to any Person with respect to such Acquisition Proposal). The Company shall not release any third party from, modify or waive any provisions of, provision of or release any of its rights under any confidentiality or standstill agreement to which the Company it is a party party. ▇▇▇▇▇ shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including, but not limited to, by obtaining injunctions to prevent any breaches of such agreements and shall use its reasonable efforts to enforce specifically the terms and provisions thereof in any such agreement at the request of or on behalf of the Parent.
(f) Immediately after the execution and delivery hereof, the Company shall (and shall cause the Company Subsidiaries to) instruct the Representatives to cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposalcourt having jurisdiction. The Company shall (i) take the necessary steps to promptly inform the Representatives involved Nothing contained in the Transactions of the obligations undertaken in this Section 6.2(a) and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company 6.06 or any portion thereof to return or destroy (and certify such destruction in writing by an executive officer other provision of such Person) all confidential information heretofore furnished to such Person by or on its behalf.
(g) Nothing in this Agreement will prohibit ▇▇▇▇▇ or restrict the Company’s ▇▇▇▇▇ Board from effecting notifying any third party that contacts ▇▇▇▇▇ on an Adverse Recommendation Change not involving or relating to unsolicited basis after the date of this Agreement concerning an Acquisition Proposal in response to a material adverse development or change in circumstances with respect to the Parent Business occurring or arising after the Signing Date, if (i) the Company’s Board determines in good faith after consultation with its outside legal counsel that not making such Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties of ▇▇▇▇▇’ obligations under applicable Law (ii) subject to compliance with applicable Law, the Company provides the Parent three Business Days’ prior written notice of the Company’s intention to make public an Adverse Recommendation Change because of such material development or change in circumstances (such notice, a “Notice of Material Development”); and that it is considering such a recommendation change and summarizing in reasonable detail the reasons therefor; and (iii) at the end of the three-Business Day period described in the immediately foregoing clause (ii), the Company Board again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms hereof that the Parent proposes in writing) that failure to make such an Adverse Recommendation Change is likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. If the Parent proposes to the Company any adjustment or modification of the terms hereof in response to a Notice of Material Development, and such proposed adjustment or modification, if implemented, would reverse the determination of the Company Board that it make an Adverse Recommendation Change, then the Company and Parent shall negotiate in good faith (during a period not exceeding three Business days, unless otherwise mutually agreed) with respect to such adjustment or modification to the terms hereof and, upon implementation of such adjustment or modification, the Company Board shall not make an Adverse Recommendation Change (or, if already made, will reinstate its recommendation in favor of the Merger and this Agreement, as so adjusted or modified)Section 6.06.
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