No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives). (b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless: (i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event; (ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and (iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h). (c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
No Solicitation. (a) The Company shall, and shall cause its Subsidiaries to and shall request that the respective Representatives of the Company and its RepresentativesSubsidiaries to, immediately cease (i) any communicationsand all existing activities, discussions or negotiations with any Person that may be ongoing Persons conducted heretofore with respect to a any Acquisition Proposal.
(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX hereof and the Appointment Time, the Company and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisor or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) furnishing furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub, their respective Representatives and the Company’s Representatives) any non-public information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned relating to the Company or destroyed any confidential information that has been provided to any Person during any such communicationsof its Subsidiaries, discussions or negotiations occurring in the six (6) months prior afford access to the date of this Agreement. From and after the date of this Agreement until the earlier to occur business, properties, assets, books or records of the Effective Time Company or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries toto any Person (other than Parent, nor shall it authorize Merger Sub or knowingly permit any designees of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly Parent or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminatedMerger Sub), or knowingly take any other action with the intention to induce or facilitate any inquiry Acquisition Proposal or the making or submission of any inquiry, proposal, indication of interest proposal or offer which constitutes, or would that is reasonably be expected likely to lead to, a Company to an Acquisition Proposal, (Biii) subject participate or engage in discussions or negotiations with any Person with respect to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company an Acquisition Proposal, (Civ) subject to Section 5.02(b)approve, approve endorse or recommendrecommend an Acquisition Proposal, or publicly propose to approve or recommend, or execute or (v) enter into any letter of intent, memorandum of understandingunderstanding or Contract contemplating or otherwise relating to an Acquisition Transaction other than a confidentiality agreement permitted by clause (B) below or (vi) terminate, merger agreement amend or waive any rights under any “standstill” or other agreement, arrangement similar agreement between the Company or understanding, in each case relating to a Company Acquisition Proposal any of its Subsidiaries and any Person (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”Parent), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, ifthat notwithstanding the foregoing, prior to the receipt Appointment Time, the Company Board may, directly or indirectly through its Representatives, subject to the Company’s compliance with the provisions of this Section 7.1, (A) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Company Board concludes in good faith (after consultation with a financial advisor of nationally recognized standing and the Company’s outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing any information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement, provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) none of the Company, any of its Subsidiaries or any Representative of the Company Stockholder Approvalor its Subsidiaries shall have breached the terms of this Section 7.1 (other than breaches that are unintentional and not material in effect), following the receipt of a bona fide written Company Acquisition Proposal that (2) the Company Board determines in good faith, faith (after consultation with the Company’s outside financial advisors and outside legal counsel, is or could ) that the failure to take such action would reasonably be expected to lead to result in a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect its fiduciary duties to the Company Stockholders under Delaware Law, (3) at least one Business Day prior to the Person making engaging or participating in any such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishingwith, or causing to be furnishedfurnishing any information to, any such nonpublic information relating to the Company to such Person, the Company enters into gives Parent written notice of the identity of such Person and a confidentiality agreement with the Person making copy of such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent and of the Company from complying with its obligation Company’s intention to provide any disclosure to Parent required pursuant to this Section 5.02 engage or participate in discussions or negotiations with, or furnish information to, such Person and (y4) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following contemporaneously with furnishing any such nonpublic non-public information to such Person, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to Without limiting the obligations generality of Parent the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 7.1 by any Representative (other than employees that are not officers of the Company or any of its Subsidiaries, unless such employees are acting at the direction of the Company or with the actual knowledge of any of the officers set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours1.1(hh) of the status Company Disclosure Letter) shall be deemed to be a breach of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).this
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (ArcSight Inc)
No Solicitation. (a) The During the Pre-Closing Period, Company shallshall not, directly or indirectly, and the Company shall cause use commercially reasonable efforts to ensure that its Subsidiaries to and shall request that its Representativesthe respective Representatives of the Symyx Corporations do not, immediately cease directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any communications, Company Acquisition Proposal;
(ii) furnish any information regarding any of the Symyx Corporations to any Person in connection with or in response to any Company Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person relating to, or that may prior to such discussions or negotiations would reasonably be ongoing with respect expected to a give rise to, any Company Acquisition Proposal;
(iv) approve, endorse or recommend any Company Acquisition Proposal; or
(iiv) furnishing enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 4.4(a) shall not prohibit the Company from furnishing information regarding the Symyx Corporations to, or entering into discussions and negotiations with, any Person if: (other than Parent, Merger Sub, their respective Representatives and A) the Company’s Representatives) any information with respect to Company shall have received from such Person a bona fide Company Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9outside legal counsel, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesBoard determines in good faith is, or would reasonably be expected to lead toresult in, a Company Acquisition Proposal, Superior Offer (and such proposal has not been withdrawn); (B) subject to Section 5.02(b), approve or recommendsuch Company Acquisition Proposal did not result from any breach of, or publicly propose to approve or recommendany action inconsistent with, a Company Acquisition Proposal, any of the provisions set forth in this Section 4.4(a); (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, is or could that failure to take such action would reasonably be expected to lead to constitute a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a) made after the date fiduciary duties of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect Board to the Company Company’s stockholders under applicable law; (D) at least four business days prior to the Person making such Company Acquisition Proposal and engage in furnishing any information to, or entering into discussions or negotiations with such Person regarding such Company Acquisition Proposal; providedwith, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into a discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an “Acceptable Company Confidentiality Agreement”including nondisclosure provisions, use restrictions and non-solicitation provisions) that (x) does not contain any provision that would prevent at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains as the provisions that in the aggregate are no less restrictive on such Person than those contained in of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement does not need to contain any provision prohibiting (including, any direct or indirect include “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposalprovisions), ; and (2E) promptly (but in any event within 24 hours) following at least four business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished by the Company to Parent or its RepresentativesMade Available to Parent). Without limiting the foregoing, any violation of the restrictions contained in this Section 4.4(a) by any Subsidiary or Representative of the Company shall be deemed a breach of this Section 4.4(a) by the Company.
(b) Notwithstanding anything During the Pre-Closing Period, Parent shall not, directly or indirectly, and Parent shall use commercially reasonable efforts to ensure that its Subsidiaries and the contrary respective Representatives of the Accelrys Corporations do not, directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Parent Acquisition Proposal;
(ii) furnish any information regarding any of the Accelrys Corporations to any Person in this Agreementconnection with or in response to any Parent Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person relating to, or that prior to such discussions or negotiations would reasonably be expected to give rise to, any Parent Acquisition Proposal;
(iv) approve, endorse or recommend any Parent Acquisition Proposal; or
(v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Parent Acquisition Transaction; provided, however, that prior to the receipt approval of the Company Parent Proposals (as defined in Section 5.3(a)) by the Required Parent Stockholder ApprovalVote, this Section 4.4(b) shall not prohibit Parent from furnishing information regarding the Company Board may effect a Company Adverse Recommendation Change if (Accelrys Corporations to, or entering into discussions and only negotiations with, any Person if): (I) : (A) the Parent shall have received from such Person a written Company bona fide Parent Acquisition Proposal that was not solicited that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Parent Board determines in violation of Section 5.02(a) is made good faith is, or would reasonably be expected to the Company by result in, a Third Party Parent Superior Offer (and such Company Acquisition Proposal is proposal has not withdrawn or been withdrawn); (B) there has been a Company Intervening Eventsuch Parent Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the provisions set forth in this Section 4.4(b); (IIC) in the case of a Company Acquisition Proposal, the Company Parent Board concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make take such action would reasonably be expected to constitute a Company Adverse Recommendation Change would be inconsistent with breach of the fiduciary duties of the Company Parent Board to Parent’s stockholders under applicable Lawlaw; (D) at least four business days prior to furnishing any information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, none that no such confidentiality agreement need include “standstill” provisions); and (E) at least four business days prior to furnishing any information to such Person, Parent furnishes such information to the Company (to the extent such information has not been previously furnished by Parent to the Company or Made Available to the Company). Without limiting the foregoing, any violation of the Companyrestrictions contained in this Section 4.4(b) by any Subsidiary or Representative of Parent shall be deemed a breach of this Section 4.4(b) by Parent.
(c) During the Pre-Closing Period, the Company Board or shall promptly (and in no event later than 24 hours) after receipt of any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
Proposal: (i) advise Parent orally and in writing of any such Company Acquisition Proposal (including the Company Board provides Parent at least five (5) days’ prior written notice identity of its intention to take such action (it being understood that the delivery of such notice and any amendment Person making or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of submitting such Company Acquisition Proposal and the terms thereof) that is made or submitted by any related Alternative Person during the Pre-Closing Period, and (ii) provide to Parent a copy of any written Company Acquisition AgreementProposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by the Company in connection with such Company Acquisition Proposal. The Company shall keep Parent reasonably informed with respect to: (A) the status of any such Company Acquisition Proposal, or and (B) the facts status and circumstances in reasonable detail terms of any material modification or proposed material modification thereto. The Company shall provide Parent with 48 hours prior notice (or such lesser notice as is provided to the members of the Company Intervening Event;Board) of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Company Acquisition Proposal.
(d) During the Pre-Closing Period, Parent shall promptly (and in no event later than 24 hours) after receipt of any Parent Acquisition Proposal: (i) advise the Company orally and in writing of any such Parent Acquisition Proposal (including the identity of the Person making or submitting such Parent Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), provide to the Company Board a copy of any written Parent Acquisition Proposal and its Representatives have negotiated in good faith with Parent a copy of all written materials (to the extent Parent desires to negotiateincluding copies of any written materials received via e-mail or other electronic medium) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed received by Parent in response to connection with such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), Parent Acquisition Proposal. Parent shall keep the Company Board concludes in good faith, after consultation reasonably informed with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable respect to: (A) the Company status of any such Parent Acquisition Proposal continues to be a Company Superior Proposal or Proposal, and (B) the status and terms of any material modification or proposed material modification thereto. Parent shall provide the Company Intervening Event continues with 48 hours prior notice (or such lesser notice as is provided to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties members of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration Parent Board) of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end meeting of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there Parent Board at which the Parent Board is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect reasonably expected to a Company Superior consider any Parent Acquisition Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(ce) In addition The Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing as of the obligations date of this Agreement with any Person that relate to any Company Acquisition Proposal.
(f) Parent shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Parent Acquisition Proposal.
(g) Each of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), agrees not to release or permit the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or to waive or permit the waiver of any discussions provision of, any confidentiality, non-solicitation, no hire, “standstill” or negotiations are sought similar Contract to be initiated regarding which any such Company Acquisition Proposal with, the Company (party or any of its Representatives)Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, indicating, in connection with and will use its commercially reasonable efforts to cause each such notice, agreement to be enforced at the identity request of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect other party to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Accelrys, Inc.), Merger Agreement (Accelrys, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned Prior to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Time, the Company shall notagrees that neither it, nor shall it permit any of its respective Subsidiaries toor affiliates, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)the respective directors, executive officers, agents or representatives of the foregoing, will, directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate information) any inquiry inquiries or the making or submission of any inquiryproposal with respect to any merger, proposal, indication consolidation or other business combination involving the Company or any Subsidiary of interest the Company or offer which constitutesthe acquisition of all or any significant part of the assets or capital stock (including but not limited to a majority voting interest) of the Company or any Subsidiary of the Company (an "Acquisition Transaction") or (ii) negotiate or otherwise engage in discussions with any person (other than Holdings and its representatives) with respect to any Acquisition Transaction, or would which may reasonably be expected to lead toto a proposal for an Acquisition Transaction, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any agreement, arrangement or understanding (including any letter of intent, memorandum of understanding, merger agreement in principle or other similar agreement, arrangement or understanding, in each case relating ) with respect to a Company any such Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoingTransaction; provided, however, ifthat, prior the Company may, in response to a proposal or inquiry unsolicited after the receipt Original Execution Date, furnish information to, negotiate or otherwise engage in discussions with any person (pursuant to a customary confidentiality agreement) which makes or indicates in writing an intention or desire to make, and with respect to whom the Board of Directors of the Company Stockholder Approvalhas concluded in good faith after consultation with its financial advisor is reasonably capable of making, following a Superior Proposal (as herein defined), if the receipt Board of a bona fide written Company Acquisition Proposal that Directors of the Company Board determines in good faith, after consultation with the Company’s its outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with the fiduciary duties of the Board of Directors of the Company Board under applicable Lawlaw and such proposed Acquisition Transaction was not solicited by it in, or did not otherwise result from a, breach of this Section 6.2 and subject to compliance with the other provisions of this Section 6.2; providedand provided further that notwithstanding anything to the contrary herein contained, however, none the Board of Directors of the Company may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act, comply with Rule 14d-9 thereunder and make all other disclosures required by applicable law. Any of the foregoing to the contrary notwithstanding, the Company Board may engage in discussions with or provide information to any committee thereof shall make person or group that has made a Company Adverse Recommendation Change and/or authorize proposal unsolicited after the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information Original Execution Date with respect to an Acquisition Transaction for the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy limited purpose of determining whether such Company Acquisition Proposal and any related Alternative Company Acquisition Agreementproposal is, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;could lead to, a Superior Proposal.
(iib) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period Except as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Company's Board of Directors under applicable Law. Any amendment or modification to law, the conditionalityCompany agrees that, price or form as of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02the Original Execution Date, it, its Subsidiaries and affiliates, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal respective directors, executive officers, agents and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end representatives of the original five foregoing, shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person (5other than Holdings and its representatives) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) conducted heretofore with respect to a any Acquisition Transaction. The Company Superior Proposalagrees to promptly advise Holdings, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b)its Subsidiaries or affiliates, the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, inquiries or proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public such information with regard to such Company Acquisition Proposal is requested from, or any negotiations or discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal or continued with, the Company (Company, its Subsidiaries or affiliates, or any of its Representatives)the respective directors, indicatingexecutive officers, agents or representatives of the foregoing, in connection each case from a person (other than Holdings and its representatives) with such noticerespect to an Acquisition Transaction, and a reasonable summary of the terms thereof, including the identity of such third party (unless disclosing the Person or group identity of Persons making such third party would violate the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiriesconfidentiality or similar agreement binding on the Company and entered into on or prior to September 19, proposals or offers (1997), including any material amendments thereto financing arrangement or any change commitment in connection therewith, and, except as otherwise would be inconsistent with the fiduciary duties of the Company's Board of Directors under applicable law, to update on an ongoing basis or upon Holdings' reasonable request, the scope or material terms or conditions status thereof, and including copies of as well as any written inquiries, proposals actions taken or offers, including proposed agreements and material modifications thereto)other developments pursuant to this Section 6.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hochberg Larry J), Agreement and Plan of Merger (Sportmart Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of Closing or, if earlier, the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9its terms, the Company shall and the ESOP agree that they will not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, or directly or indirectly through any officer, director, employee, investment banker, attorney, advisor, representative or agent (Aeach a “Representative”), as applicable for any or all of them (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which (whether in writing or otherwise) that constitutes, or would reasonably be expected to could lead to, a proposal or offer for a merger, consolidation, business combination, recapitalization, sale of substantial assets or sale of a substantial percentage of the Shares (including without limitation by way of a public offering or private placement) involving the Company other than the Contemplated Transactions (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”); (ii) engage in negotiations or discussions concerning, or provide any non-public information to any Person relating to, any Acquisition Proposal; or (Biii) subject to Section 5.02(b)agree to, approve or recommend, or publicly propose to approve or recommend, a Company recommend any Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, that if, prior to at any time after the receipt of date hereof, the Company Stockholder Approval, following the receipt of a ESOP receives an unsolicited bona fide written Company Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 6.15) from any Person (other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal, the ESOP may (x) furnish non-public information about the Company to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not materially less restrictive of such Person than the Confidentiality Agreement and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal; provided that the Company Board determines Trustee shall not take any such action unless the Trustee shall have determined in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination would be deemed to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy breach of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification The Company and the ESOP agree to the conditionality, price or form of consideration notify Purchaser as soon as is reasonably practicable (and not later than forty-eight (48) hours) after receipt of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any request for non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such noticean Acquisition Proposal or for access to the properties, books or records of the Company by any Person that informs the Company or the ESOP that it is considering making or has made an Acquisition Proposal. Such notice shall be made orally (and shall be confirmed in writing) and shall indicate the identity of the Person or group of Persons making the inquirymaking, proposal or offer and the material terms and conditions of, such proposal, inquiry or contact notwithstanding any confidentiality restrictions applicable thereto (which the ESOP shall be required to obtain waiver of prior to its review of any such inquiriesproposal, proposals inquiry or offers contact). The ESOP shall inform Purchaser and the Company periodically of the status and content of any discussions or negotiations regarding such Acquisition Proposal with such Person and as promptly as reasonably practicable of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. Each of the Company and the ESOP will use its best efforts to prevent its Representatives from taking any action prohibited hereby if taken by the Company or the ESOP. If either of the Company or the ESOP learns of any such action taken by a Representative, the Company or the ESOP, as the case may be, will immediately advise Purchaser and provide the information specified herein. Notwithstanding anything to the contrary contained herein, (i) nothing in this Section 6.15 shall delay or otherwise affect those obligations of the parties arising under Section 6.4(a) and providing copies of all related written inquiriesSection 6.7(a) hereof, proposals or offers, including proposed agreements) and (ii) thereafter if the ESOP receives an unsolicited bona fide written Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 6.15) from any Person (other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal and at or after the time of the receipt of such Acquisition Proposal all of the conditions to the Closing set forth in Article VII (except those conditions which by their nature can only be satisfied on the Closing Date) have been or are subsequently satisfied, the ESOP shall keep Parent determine (and shall provide reasonably informedprompt oral and written notice of such determination to Purchaser and the Company) to accept or reject such Acquisition Proposal within seven (7) Business Days following the later of the receipt of such Acquisition Proposal or satisfaction of such conditions. In the event that the ESOP determines to accept such Acquisition Proposal, the ESOP shall, on a reasonably prompt basis the next succeeding Business Day following the expiration of such seven (and7) Business Day period, invoke the procedures set forth in any eventSection 11.1(e), within 24 hoursincluding, without limitation, by providing Purchaser with five (5) Business Days to amend the terms of its offer. In the status event that the ESOP determines to reject such Acquisition Proposal, the ESOP shall, on the next succeeding Business Day following the expiration of any material discussions or negotiations with respect to any such inquiriesseven (7) Business Day period, proposal or offers and the details of any material changes provide notice to the status and material terms Person(s) making the Acquisition Proposal of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofrejection, and including copies of any written inquiries, proposals or offers, including proposed agreements shall cease all negotiations and material modifications theretodiscussions regarding an Acquisition Proposal with such Person(s).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Global Defense Technology & Systems, Inc.), Stock Purchase Agreement (Global Defense Technology & Systems, Inc.)
No Solicitation. (a) The Company shallshall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Avanex Corporations to not, directly or indirectly and shall request use its reasonable best efforts to ensure that its Representativesthe other Representatives of the Avanex Corporations do not, immediately cease directly or indirectly:
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any communications, Acquisition Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation;
(ii) furnish any information regarding any of the Avanex Corporations to any Person in connection with or in response to an Acquisition Proposal with respect to an Avanex Corporation or Acquisition Inquiry with respect to an Avanex Corporation;
(iii) engage in discussions or negotiations with any Person that may be ongoing relating to any Acquisition Proposal with respect to a Company an Avanex Corporation or Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information Inquiry with respect to a Company an Avanex Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal and (iii) cooperating with, assisting in, participating in, with respect to an Avanex Corporation or knowingly facilitating Acquisition Inquiry with respect to an Avanex Corporation or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur group becoming an “interested stockholder” under Section 203 of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to DGCL; or
(and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Av) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case relating to a Company Acquisition Proposal any Contract (other than an Acceptable Company Confidentiality Agreementa confidentiality agreement on the terms described below) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue contemplating or otherwise participate in relating to any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree Transaction with respect to do any of the foregoingan Avanex Corporation; provided, however, if, that prior to the receipt adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) nor any other provision of this Agreement shall prohibit the Company Stockholder Approvalfrom furnishing nonpublic information regarding the Avanex Corporations to, following the receipt of a bona fide written Company or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Company Superior Offer that is submitted to the Company by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the provisions set forth in this Section 4.4(a); (B) the Company Board determines concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, is or could reasonably that failure to take such action would be expected to lead to a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a) made after the date fiduciary duties of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect Board to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition ProposalCompany’s stockholders under applicable law; provided, that (1C) at least four business days prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions or negotiations with, such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into a discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an “Acceptable Company Confidentiality Agreement”including nondisclosure provisions, use restrictions and non-solicitation) that (x) does not contain any provision that would prevent at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains as the provisions that in the aggregate are no less restrictive on such Person than those contained in of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement does not need to contain any provision prohibiting (including, any direct or indirect include “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposalprovisions), ; and (2D) promptly (but in any event within 24 hours) following at least two business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished by the Company to Parent or its RepresentativesParent).
(b) Notwithstanding anything Parent shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors, financial advisers, attorneys and accountants of the Bookham Corporations to not, directly or indirectly and shall use its reasonable best efforts to ensure that the contrary other Representatives of the Bookham Corporations do not, directly or indirectly
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(ii) furnish any information regarding any of the Bookham Corporations to any Person in this Agreementconnection with or in response to an Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(iii) engage in discussions or negotiations with any Person relating to any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to a Bookham Corporation or Acquisition Inquiry with respect to a Bookham Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to a Bookham Corporation; provided, however, that prior to the receipt approval of the Company issuance of shares of Parent Common Stock in the Merger by the Required Parent Stockholder ApprovalVote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Company Board may effect Bookham Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Company Adverse Recommendation Change if Parent Superior Offer that is submitted to Parent by such Person after the date hereof (and only not withdrawn) if): (I) : (A) a written Company such Acquisition Proposal that was did not solicited result from any breach of, or any action inconsistent with, any of the provisions set forth in violation of this Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or 4.4(b); (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Parent Board concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with a breach of the fiduciary duties of the Company Parent Board to Parent’s stockholders under applicable Lawlaw; (C) at least four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
that no such confidentiality agreement need include “standstill” provisions); and (iD) the Company Board provides Parent at least five (5) days’ two business days prior written notice of its intention to take furnishing any such action (it being understood that the delivery of nonpublic information to such notice and any amendment or update thereto and the determination to so deliver Person, Parent furnishes such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the nonpublic information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed such nonpublic information has not been previously furnished by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable .
(Ac) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties Each of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, Parent and the Company shall promptly (but and in any no event within 24 later than 48 hours of occurrence) notify Parent after receipt of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior ProposalBookham Corporation or an Avanex Corporation, as the Company shall only enter into an Alternative Company case may be, or Acquisition Agreement Inquiry with respect thereto by terminating to a Bookham Corporation or an Avanex Corporation, as the case may be) advise the other party to this Agreement orally and in accordance writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with Section 9.01(h)respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(cd) In addition to the obligations Each of Parent and the Company set forth in Section 5.02(ashall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(e) Each of Parent and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing agrees not to release or permit the release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or to waive or permit the waiver of any discussions provision of, any confidentiality, non-solicitation, no hire, “standstill” or negotiations are sought similar Contract to be initiated regarding which any such Company Acquisition Proposal with, the Company (party or any of its Representatives)Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, indicating, and will use its reasonable best efforts to cause each such agreement to be enforced in connection accordance with such notice, its terms at the identity request of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect other party to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Avanex Corp), Agreement and Plan of Merger and Reorganization (Bookham, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Time, the Company Acquiror shall not, nor shall it permit directly or indirectly through any officer, director, employee, representative or agent of Acquiror or otherwise take any of the following actions with any other party other than Target and its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to designees: (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate initiate, entertain or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)any inquiries or proposals that constitute, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would could reasonably be expected to lead to, a Company proposal or offer for a merger, consolidation, share exchange, business combination, sale of a material portion of Acquiror's assets, shares of capital stock or similar transactions involving Acquiror other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”"), (Dii) enter into, continue engage or otherwise participate in negotiations or discussions concerning, or provide any discussions non-public information to any person or negotiations regarding entity relating to, any Company Acquisition Proposal, or (Eiii) agree to do to, enter into, accept, approve, recommend, authorize any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information statement with respect to or solicit in support of any Acquisition Proposal. Acquiror represents and warrants that it has the Company legal right to the Person making such Company Acquisition Proposal and engage in terminate any pending discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company an Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making without payment of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent fee or its Representatives)other penalty.
(b) Notwithstanding anything Acquiror shall notify Target immediately (and no later than 24 hours) after receipt by Acquiror (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the contrary properties, books or records of Acquiror by any person or entity that informs Acquiror that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the specific terms and conditions of such proposal, inquiry or contact, as the case may be, and such other information related thereto as Target may reasonably request.
(c) Except as contemplated by this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company disclosure by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification Acquiror of the terms hereof (other than the prohibition of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the CompanySection 4.2), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will shall be deemed to be a new Company Acquisition Proposal for purposes violation of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)4.2.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Digitalpreviews Com Inc), Agreement and Plan of Reorganization (Intraop Medical Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to From the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Expiration Date, the Company Stockholder shall not, nor and shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of instruct its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) initiate, seek or solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information which has not been previously publicly disseminated)non-public information) or take any other action that is reasonably expected to promote, directly or knowingly facilitate indirectly, any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would reasonably be expected to lead to, a Company an Acquisition ProposalProposal with respect to Akebia, (Bii) subject to Section 5.02(b), approve participate or recommendengage in discussions or negotiations with, or publicly propose disclose any non-public information or data relating to, Akebia or any of its Subsidiaries to approve any Person that has made or recommend, a Company could reasonably be expected to make an Acquisition Proposal, Proposal with respect to Akebia or (Ciii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, arrangement or understanding, in each case relating with respect to a Company an Acquisition Proposal with respect to Akebia. The Stockholder shall, and shall instruct its Representatives to, (x) cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Akebia, Keryx and their Affiliates) conducted heretofore with respect to an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or which could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company an Acquisition Proposal, and, in connection therewith, immediately discontinue access by any Person (other than Akebia, Keryx and subject their Affiliates) to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making any data room (virtual or otherwise) established for such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 purpose and (y) contains provisions that in request the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior return or destruction of all confidential and non-public information provided to the execution of this Agreement (providedthird parties since January 1, that such agreement does not need 2017, relating to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company an Acquisition Proposal), and within two (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, Business Days from the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)date hereof.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b4(a), the Company (i) shall Stockholder shall, as promptly (as practicable after receipt thereof, and in any event within 24 hours) notify Parent , advise Akebia in writing of any inquiries, proposals request for information or offers any Acquisition Proposal with respect to a Company Akebia, and the terms and conditions of such request, Acquisition Proposal that are received byProposal, or any non-public information with regard to such Company Acquisition Proposal is requested frominquiry, or any discussions or negotiations are sought negotiations, and the Stockholder shall provide to be initiated regarding such Company Acquisition Proposal with, Akebia copies of any written materials received by the Company (or any of its Representatives), indicating, Stockholder in connection with such notice, any of the foregoing and the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiriesrequest, proposals Acquisition Proposal or offers (and providing copies of all related written inquiries, proposals inquiry or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in with whom any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)are taking place.
Appears in 2 contracts
Sources: Voting Agreement, Voting Agreement (Keryx Biopharmaceuticals Inc)
No Solicitation. (a) The On the date of this Agreement, the Company shall, and shall cause each of its Subsidiaries and each of its and its Subsidiaries’ respective officers, directors, employees, consultants, agents, advisors, Affiliates and other representatives (collectively, “Representatives”) to and shall request that its Representatives, immediately cease (i) immediately cease any communicationssolicitation, encouragement, discussions or negotiations with any Person Persons that may be ongoing with respect to a Company Acquisition Takeover Proposal, and (ii) furnishing request such Person to any Person (other than Parent, Merger Sub, their respective Representatives promptly return or destroy all confidential information concerning the Company and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating withSubsidiaries. Except as permitted by this Section 5.2, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communicationsshall and shall cause each of its Subsidiaries and Representatives not to, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after from the date of this Agreement until the earlier to occur of the Effective Time or or, if earlier, the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)Article VII, directly or indirectly, (A) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing information which has not been previously publicly disseminated)non-public information) any inquiries regarding, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would could reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposalregarding, or furnish to any other party information in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal or (EC) agree to do enter into any letter of the foregoing; providedintent, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines agreement or agreement in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information principle with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition a Takeover Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in contained herein, if at any time on or after the date of this Agreement, Agreement and prior to the receipt of obtaining the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) or any of its Representatives receives a written Company Acquisition Takeover Proposal from any Person, which Takeover Proposal was made or renewed on or after the date of this Agreement and that was did not solicited in violation result from any breach of this Section 5.02(a) is made to 5.2, if the Board of Directors of the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes determines in good faith, after consultation with the Company’s outside independent financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with the directors’ fiduciary duties of under applicable Law and that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, then the Company Board under applicable Law; providedand its Representatives may (x) furnish, howeverpursuant to an Acceptable Confidentiality Agreement, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
information (iincluding non-public information) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (Subsidiaries to the extent Parent desires to negotiate) regarding any revisions to the terms Person or group of this Agreement Persons who has made such Takeover Proposal; provided that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in provide to Parent any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after material non-public information concerning the Company Board provides written notice of or its Subsidiaries that is provided to any Person given such new Company Acquisition Proposal access which was not previously provided to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meetingits Representatives; and (y) engage in the event there is a Company Adverse Recommendation Change made or otherwise participate in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making such Takeover Proposal; provided, further that the inquiryCompany shall promptly provide to Parent (and in any event within 48 hours) (i) a copy of any Takeover Proposal made in writing provided to the Company or any of its Subsidiaries, proposal or offer and the material terms and conditions identity of any such inquiriesthe Person making the Takeover Proposal, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) written summary of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiriesTakeover Proposal not made in writing. From and after the date hereof, proposals the Company shall not grant any waiver, amendment or offers (including release under any material standstill agreement without the prior written consent of Parent. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means any confidentiality and standstill agreement that contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, it being understood that such confidentiality agreements need not prohibit the submission of Takeover Proposals or amendments thereto or any change to the scope or material terms or conditions thereof, and including copies Company’s Board of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Directors.
Appears in 2 contracts
Sources: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor and shall it not authorize or permit any of its Subsidiaries officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Aa) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminatedinformation), or knowingly facilitate take any inquiry other action to facilitate, any inquiries or the making or submission of any inquiry, proposal, indication of interest or offer proposal which constitutes, or would may reasonably be expected to lead to, a Company Acquisition Proposal, any Takeover Proposal (B) subject to Section 5.02(bas hereinafter defined), approve or recommend(b) agree to or endorse any Takeover Proposal. Notwithstanding the immediately preceding sentence, or publicly propose to approve or recommend, if the Company shall not have breached the covenant provided by clause (a) of the immediately preceding sentence and a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Takeover Proposal, or (E) agree to do any a written expression of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal interest that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could can reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Takeover Proposal, and subject to compliance with Section 5.02(b)shall occur, furnish information with respect to then, upon the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt good faith determination of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none Directors of the Company, acting upon the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice advice of its intention to take such action (it being understood legal and financial advisors, that the delivery of such notice Takeover Proposal is a better offer than the transactions contemplated by this Agreement and any amendment or update thereto and consistent with the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail fiduciary obligations under applicable law of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)Company's Board of Directors, the Company Board and its Representatives have negotiated officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in good faith with Parent connection therewith information (including non-public information, but only pursuant to the extent Parent desires to negotiatea confidentiality agreement in customary form, including customary standstill provisions) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to and take such Company Superior Proposal or Company Intervening Event, other actions as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent are consistent with the fiduciary duties obligations of the Company Company's Board under applicable Law. Any amendment or modification to the conditionalityof Directors, price or form of consideration of any Company Superior Proposal will and such actions shall not be deemed to be considered a new Company Acquisition Proposal for purposes breach of this Section 5.02, and the Company shall promptly (but in 5.12 or any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions other provision of this Section 5.02(b) with respect theretoAgreement; provided, however, that the “matching period” set forth above Company shall in such circumstance expire on the later not, and shall not permit any of three (3) days after the Company Board provides written notice of such new Company Acquisition its officers, directors, employees or other representatives to, agree to or endorse any Takeover Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating have terminated this Agreement in accordance with pursuant to Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a7.1(e) and paid to Parent all amounts payable to Parent pursuant to Section 5.02(b5.6(b), the . The Company (i) shall promptly (advise Parent orally and in any event within 24 hours) notify Parent in writing of any inquiries, proposals inquiries or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer Takeover Proposals and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) informed of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of information with respect to such inquiries or Takeover Proposals. As used in this Agreement, "Takeover Proposal" shall mean any such inquiriestender or exchange offer, proposals proposal for a merger, consolidation or offers (including any material amendments thereto other business combination involving the Company or the Company Common Stock and made by a Person other than Parent or any change proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the scope or material terms or conditions thereofassets of, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)the Company other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Arrow Electronics Inc), Merger Agreement (Arrow Electronics Inc)
No Solicitation. (a) The Company shallagrees that, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Time, the Company it shall not, nor and shall it not authorize or permit any Company Subsidiaries or any of its Subsidiaries toor the Company Subsidiaries' directors, nor shall it authorize officers, employees, investment bankers, attorneys or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)other agents or representatives, directly or indirectly, (A) to solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiryproposal or provide any information about the Company or the Company Subsidiaries with respect to any merger, proposalconsolidation or other business combination involving the Company or the Company Subsidiaries or their respective assets or capital stock (a "Takeover Proposal") or negotiate, indication of interest explore or offer which constitutesotherwise engage in discussions with any person (other than Merger Sub or its directors, or would reasonably be expected officers, employees, agents and representatives) with respect to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute any Takeover Proposal or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understandingunderstanding requiring it to abandon, in each case relating terminate or fail to a Company Acquisition Proposal (consummate the Merger or any other than an Acceptable Company Confidentiality transactions contemplated by this Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to that if the receipt Board of Directors of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement's stockholders under applicable law, the Company may, in response to such Company Acquisition Proposalany Superior Proposal (as defined below), which proposal was not solicited by it and which did not otherwise result from a breach of this Section 5.7, and subject to providing prior written notice of its decision to take such action to Merger Sub and compliance with the other requirements of this Section 5.02(b)5.7, (i) furnish information with respect to the Company and the Company Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement no less favorable to the Person making such Company Acquisition Proposal than the confidentiality agreement previously entered into by the Company and engage Merger Sub (as determined in good faith by the Company based on the advice of its outside counsel) and (ii) participate in discussions or negotiations with such Person regarding such Company Acquisition Superior Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in Except as expressly permitted by this Agreement, prior to neither the receipt Board of Directors of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or nor any committee thereof shall make (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Merger Sub, the approval or recommendation by the Board of Directors of the Company Adverse Recommendation Change and/or authorize or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(aparagraphs (a) and (b) of this Section 5.02(b)5.7, the Company (i) shall promptly (advise Merger Sub orally and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, request for information or any non-public information with regard to such Company Acquisition Proposal is requested fromTakeover Proposal, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals request or offers Takeover Proposal (and providing copies of all related written inquiries, proposals any amendments or offers, including proposed agreementsamendments thereto) and the identity of the person making such request or Takeover Proposal.
(iid) thereafter Nothing contained in this Section 5.7 shall keep Parent reasonably informed, on prohibit the Company from taking and disclosing to its stockholders a reasonably prompt basis (andposition contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in any eventthe good faith judgment of the Board of Directors of the Company, within 24 hoursafter consultation with outside counsel and based as to legal matters on the written advice of the Company's independent legal counsel, failure so to disclose would be inconsistent with its obligations under applicable law; provided, however, that, except as contemplated by clause (b) of this Section 5.7, neither the status Company nor the Board of Directors of the Company nor any material discussions committee thereof shall withdraw or negotiations modify, or propose publicly to withdraw or modify, its position with respect to any such inquiriesthis Agreement or the Merger or approve or recommend, proposal or offers and the details propose publicly to approve or recommend, a Takeover Proposal.
(e) For purposes of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Green William S), Merger Agreement (Parthanon Investors Lp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to From the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Agreement, the Company shall not, nor shall it not and will not authorize or permit any of its Subsidiaries toofficers, nor shall it authorize directors, employees, financial advisors, representatives or knowingly permit any of its Representatives agents to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)seek, initiate, or knowingly facilitate encourage any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesproposals that constitute, or would be reasonably be expected likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company Acquisition Proposaland its Subsidiaries, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal taken as whole (other than an Acceptable Company Confidentiality Agreementthe sale of inventory or obsolete property in the ordinary course of business), sale of shares of its capital stock (including without limitation by way of a tender offer) or a Company Superior Proposal similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (each any of the foregoing inquiries or proposals being referred to in this Agreement as an “Alternative Company Acquisition Agreement”"ACQUISITION PROPOSAL"), (Dii) enter intoengage in negotiations or discussions with any Person other than Parent or its affiliates (a "THIRD PARTY") concerning, continue or otherwise participate in provide any discussions or negotiations regarding non-public information to any Company Person relating to, any Acquisition Proposal, or (Eiii) agree to do or recommend any of the foregoingAcquisition Proposal; providedPROVIDED, howeverHOWEVER, if, prior to the receipt of that nothing contained in this Agreement shall prevent Company or the Company Stockholder ApprovalBoard or the Special Committee from (A) furnishing nonpublic information to, following the receipt of a or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is by such Person or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information modifying or withdrawing its recommendation with respect to the Company transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the Person making such Company Acquisition Proposal Shareholders, if and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, only to the extent that (1) the Company Board or the Special Committee believes in good faith (after consultation with its financial and legal advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is required for the Company Board or the Special Committee to comply with its fiduciary duties to the Shareholders under applicable law and (2) prior to furnishingfurnishing such non-public information to, or causing to be furnishedentering into discussions or negotiations with, any such nonpublic information relating to the Company to such Person, the Company enters into a Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are terms no less restrictive on such Person favorable to Company than those contained in the Confidentiality Agreement as Agreement, dated April 12, 1999 between Parent and Company (the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Company agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, an Acquisition Proposal, unless the Company Board or the Special Committee determines in effect immediately prior to the execution of this Agreement (provided, good faith after consultation with outside legal counsel that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, action is necessary for the Company furnishes such nonpublic information Board or the Special Committee to Parent (comply with its fiduciary duties to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Shareholders under applicable law.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Company shall notify Parent immediately after receipt by Company (or its advisors) of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company any Acquisition Proposal that was not solicited or any request for nonpublic information in violation of Section 5.02(a) is made to the Company by a Third Party and such Company connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is not withdrawn considering making, or (B) there has been a Company Intervening Event; (II) in the case of a Company made, an Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which . Such notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified be made orally and in Section 5.02(c), as well as a copy of such Company Acquisition Proposal writing and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances shall indicate in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice conditions of such new Company Acquisition Proposal to Parent and the end of the original five proposal, inquiry or contact (5) day period described in clause (ii) above; providedincluding, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such noticewithout limitation, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter Acquisition Proposal). Company shall continue to keep Parent reasonably informed, on a reasonably prompt basis (andcurrent basis, in any event, within 24 hours) of the status of any material such discussions or negotiations with respect to any such inquiries, proposal or offers and the details terms being discussed or negotiated.
(c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by the Company Board or the Special Committee, as the case may be, of any material changes the Offer, this Agreement or the Merger unless the Company Board or the Special Committee, as the case may be, determines, in the exercise of its fiduciary duties, that it is necessary to do so. Nothing contained in this Section 6.3(c) will prohibit Company from taking and disclosing to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to Shareholders a position contemplated by Rule 14e-2 promulgated under the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
No Solicitation. (a) The Company shall, shall cause and its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, and all existing discussions or negotiations with any Person that may be ongoing Persons conducted heretofore with respect to a any Acquisition Proposal and terminate such Persons’ access to any data room containing the Company’s confidential information, and shall as promptly as practicable (and in any event within three (3) Business Days) request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by the Company, its Subsidiaries or Representatives.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) the Effective Time, the Company and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney, accountant or other authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal, (ii) furnishing furnish to any Person (other than Parent, Merger Acquisition Sub or any designees of Parent or Acquisition Sub, their respective Representatives and the Company’s Representatives) any non-public information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned relating to the Company or destroyed any confidential information that has been provided of its Subsidiaries, or afford to any Person during (other than Parent, Acquisition Sub or any such communications, discussions designees of Parent or negotiations occurring in the six (6Acquisition Sub) months prior access to the date of this Agreement. From and after the date of this Agreement until the earlier business, properties, assets, books, records or other non-public information, or to occur any personnel, of the Effective Time Company or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries toSubsidiaries, nor shall it authorize in any such case with the intent to induce the making, submission or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)announcement of, or knowingly the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or proposal that would reasonably be expected to lead to, a Company to an Acquisition Proposal, (Biii) subject to Section 5.02(b), approve participate or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such any Person regarding such Company with respect to an Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, (iv) enter into any such nonpublic information Contract contemplating or otherwise relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company an Acquisition Proposal Transaction (other than an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(bc) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the receipt of the Company Requisite Stockholder Approval, if the Company receives from any Person a bona fide, written and unsolicited Acquisition Proposal not involving a breach of Section 5.2(b) that the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes determines in good faith, faith (after consultation with the Company’s outside financial advisors advisor and outside legal counsel, that such Company Acquisition Proposal ) either constitutes or is reasonably expected to lead to a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with such Person and/or (ii) furnish to such Person any non-public information relating to the Company or any committee thereof shall make a of its Subsidiaries and/or afford such Person access to the business, properties, assets, books, records or other non-public information, or the personnel, of the Company Adverse Recommendation Change and/or authorize or any of its Subsidiaries, in each case under this clause (ii) pursuant to an Acceptable Confidentiality Agreement, provided that contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent to the extent such information has not been previously furnished by the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that in the “matching period” set forth above shall in case of each action taken pursuant to the preceding clauses (i) or (ii), prior to taking such circumstance expire on the later of three action, (3A) days after the Company Board provides and/or any authorized committee thereof determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Delaware Law, and (B) the Company gives Parent written notice of the identity of such new Company Person and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person (and shall include with such notice copies of any written materials received from or on behalf of such Person in connection with or relating to such Acquisition Proposal). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by the Company’s Subsidiaries or its Representatives shall be deemed to be a breach of this Section 5.2 by the Company.
(d) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Effective Time, neither the Company nor any of its Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than Parent and Acquisition Sub) from, any “standstill” or other similar agreement between the end Company or any of its Subsidiaries, on the original five (5) day period described in clause (ii) above; providedone hand, furtherand such Person, (x) whether or not there is a Company Adverse Recommendation Changeon the other, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by and/or any authorized committee thereof determines in good faith (after consultation with its outside legal counsel) that the Company stockholders at failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)under Delaware Law.
(ce) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b5.2(b), the Company (i) shall promptly (and in any event within 24 48 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, receipt by the Company (or any of its Representatives)Representatives of (i) any Acquisition Proposal, indicating(ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, in connection or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, including with such noticenotice the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons making the inquiryany such Acquisition Proposal, proposal request or offer inquiry (and the material terms and conditions shall include with such notice copies of any written materials received from or on behalf of such inquiries, proposals Person in connection with or offers relating to such Acquisition Proposal (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter any financial terms)). The Company shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) informed of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiriesAcquisition Proposal, proposals request or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. (a) The Company shallWithout limiting any other obligations under this Agreement, shall cause its Subsidiaries to each of Applied and shall request that its RepresentativesTEL agrees that, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to from the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Applied Merger Effective Time or and the date of termination of this Agreement in accordance with ARTICLE 9its terms, the Company shall not, neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of the officers, directors or employees of it or its Representatives to (Subsidiaries shall, and that it shall use its reasonable best efforts to cause such Persons its and its Subsidiaries’ other Representatives not to), directly or indirectly, :
(Ai) solicit, initiate initiate, knowingly encourage, knowingly facilitate (subject to Section 4.3(b)) or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)induce the making, submission or knowingly facilitate any inquiry or the making or submission announcement of any inquiry, proposal, indication of interest Acquisition Proposal or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, Inquiry;
(Bii) subject to Section 5.02(b4.3(b), approve furnish any non-public information or recommendnon-public data to any Person (other than TEL or Applied, respectively) in connection with or publicly propose in response to approve an Acquisition Proposal or recommend, a Company Acquisition Proposal, Inquiry;
(Ciii) subject to Section 5.02(b4.3(b), approve engage in discussions or recommendnegotiations with any Person (other than TEL or Applied, respectively) relating to any Acquisition Proposal or publicly propose to approve Acquisition Inquiry;
(iv) approve, endorse or recommendrecommend any Acquisition Proposal or Acquisition Inquiry or, in the case of Applied, approve, endorse or execute recommend any Person or any group other than TEL becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any agreement in principle or letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case relating to a Company Acquisition Proposal any Contract (other than an Acceptable Company Confidentiality Agreementa confidentiality agreement on the terms described in Section 4.3(b)) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue contemplating or otherwise participate in relating to any discussions Acquisition Transaction or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoingforegoing related to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary set forth in Section 4.3(a):
(i) each of Applied and TEL and their respective boards of directors shall be permitted to: (A) in the case of Applied, comply with Rule 14d-9 and Rule 14e-2 of the Exchange Act; and (B) in the case of TEL, comply with Section 27-10 of the Financial Instruments and Exchange Act (Act No. 25 of 1948); provided, however, ifthat neither clause “(A)” nor clause “(B)” of this Section 4.3(b)(i) will in any way eliminate or modify the effect that any such action would otherwise have under this Agreement; and
(ii) at any time following the date hereof and, in the case of Applied, prior to receipt by Applied of the Required Applied Stockholder Vote and, in the case of TEL, prior to the receipt of the Company Required TEL Stockholder ApprovalVote, following the receipt neither Section 4.3(a) nor any other provision of a bona fide written Company this Agreement shall prohibit Applied or TEL, respectively, from furnishing nonpublic information to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is reasonably expected to result in a Superior Offer that is submitted by a Person after the Company date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the provisions set forth in this Section 4.3(b); (B) the Applied Board determines or the TEL Board, as the case may be, concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, is or could reasonably that failure to take such action would be expected to lead to a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(atheir fiduciary duties under applicable Legal Requirements; (C) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) at least two business days prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions or negotiations with, such Person, the Company enters Applied Board or the TEL Board, as the case may be, gives TEL or Applied, respectively, written notice of the identity of such Person and the intention to furnish nonpublic information to, or enter into a discussions with, such Person, and the Applied Board or the TEL Board, as the case may be, receives from such Person an executed confidentiality agreement with containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Applied or TEL, as the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent case may be, as the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), Agreement; and (2D) promptly (but in any event within at least 24 hours) following hours prior to furnishing any such nonpublic information to such Person, Applied and TEL, as the Company case may be, furnishes such nonpublic information to Parent TEL or Applied, respectively (to the extent such nonpublic information has not been previously so furnished to Parent TEL or its Representatives).
(b) Notwithstanding anything to the contrary in this AgreementApplied, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(hrespectively).
(c) In addition to the obligations Each of Parent Applied and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) TEL shall promptly (and in no event later than 48 hours after receipt of any event within 24 hoursAcquisition Proposal or Acquisition Inquiry) notify Parent advise TEL or Applied, respectively, orally and in writing of any inquiries, proposals or offers with respect to a Company such Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company Inquiry (or any of its Representatives), indicating, in connection with such notice, including the identity of the Person making or group of Persons making the inquiry, proposal submitting such Acquisition Proposal or offer Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material terms and conditions sent or provided to such Party in connection therewith) that is made or submitted by any Person (other than Applied or TEL) during the Pre-Closing Period. Each of Applied or TEL, as applicable, after receiving an Acquisition Proposal or Acquisition Inquiry, shall keep TEL or Applied, respectively, reasonably informed with respect to: (i) the status of any such inquiries, proposals Acquisition Proposal or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) Acquisition Inquiry; and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status and terms of any material modification or material development or proposed material modification or material development thereto.
(d) Each of Applied and TEL agrees that it, its Subsidiaries, and its and its Subsidiaries’ respective officers, directors and employees shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with respect any Person that relate to any such inquiries, proposal Acquisition Proposal or offers Acquisition Inquiry.
(e) Each of Applied and TEL agrees not to release or permit the details release of any material changes Person from, or to waive or permit the status and material terms waiver of any such inquiriesprovision of, proposals any confidentiality, non-solicitation, no hire, “standstill” or offers (including any material amendments thereto similar Contract to which it or any change to the scope of its Subsidiaries is a party or material terms under which it or conditions thereofany of its Subsidiaries has any rights, and including copies shall use its reasonable best efforts to cause each such agreement to be enforced in accordance with its terms at the request of any written inquiriesTEL or Applied, proposals or offers, including proposed agreements and material modifications thereto)respectively.
Appears in 2 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)
No Solicitation. (a) The Company shallSubject to Section 6.3(b), shall cause its Subsidiaries to unless and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of until this Agreement until the earlier shall have been terminated by either Party pursuant to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Article VIII, the Company BPW shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, and shall cause its Representatives not to: (Ai) solicit, encourage, initiate or knowingly encourage participate in any negotiations, inquiries or discussions with respect to any BPW Acquisition Proposal or Business Combination (including by way of furnishing information which has not been previously publicly disseminatedother than the transactions contemplated hereby); (ii) disclose, in connection with a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated hereby), any information or knowingly facilitate provide access to its properties, books or records, except as required by law or pursuant to a governmental request for information; (iii) enter into or execute any inquiry agreement relating to a BPW Acquisition Proposal or Business Combination (other than the making transactions contemplated hereby or submission of any inquirya confidentiality agreement permitted by Section 6.3(b)); (iv) fail to make, proposalwithdraw, indication of interest qualify, amend or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, modify or publicly propose to approve withdraw, qualify, amend or recommendmodify the BPW Recommendation (it being understood that, a Company Acquisition Proposal, (C) subject to Section 5.02(b6.3(b), approve taking a neutral or recommend, no position with respect to any publicly disclosed BPW Acquisition Proposal or publicly propose disclosed proposal with respect to approve any Business Combination (other than the transactions contemplated hereby) shall be considered an amendment or recommendmodification) or make or authorize any public statement, recommendation or execute solicitation in support of any BPW Acquisition Proposal or enter into any letter of intent, memorandum of understanding, merger agreement or Business Combination (other agreement, arrangement or understandingthan the transactions contemplated hereby).
(b) Notwithstanding the foregoing, in each case response to a bona fide, unsolicited, BPW Acquisition Proposal from a Third Party (that does not result from a breach of this Section 6.3), the BPW Board may, and may authorize and permit BPW’s Representatives to, prior to the BPW Stockholders Meeting and subject to compliance with the other terms of this Section 6.3, (i) provide such Third Party with nonpublic information, and (ii) participate in discussions and negotiations with such Third Party relating to such proposal, if and only to the extent that (A) the BPW Board, after having consulted with and considered the advice of outside counsel, has reasonably determined in good faith that failure to take such action would result in a violation of applicable law, and (B) the Third Party has entered into a confidentiality agreement pertaining to nonpublic information regarding BPW containing terms in the aggregate no more favorable to the Third Party than those in the Confidentiality Agreement (including the standstill provision thereof). BPW shall provide or make available to the Company any non-public information concerning BPW provided or made available to such other Person pursuant to this Section 6.3(b) which was not previously provided or made available to the Company prior to or simultaneously with its provision to such other Person.
(c) BPW shall notify the Company as soon as practicable (but in any event within 24 hours) after receipt by an officer or director of BPW or by any of BPW’s Representatives of any BPW Acquisition Proposal or an offer, inquiry or proposal relating to a Company Acquisition Proposal Business Combination (other than an Acceptable Company Confidentiality the transactions contemplated by this Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue any inquiry or otherwise participate in any request for discussions or negotiations regarding any Company BPW Acquisition ProposalProposal or Business Combination (other than the transactions contemplated by this Agreement), any request for information relating to BPW other than requests for information in the ordinary course of business and unrelated to a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement) or for access to BPW’s properties, books or records by any person or entity that informs BPW that it is considering making, or has made, a BPW Acquisition Proposal or an offer, inquiry or proposal relating to a Business Combination (E) agree to do any other than the transactions contemplated by this Agreement). Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the foregoing; providedofferor and the terms and conditions of such proposal, howeverinquiry or contact and copies of any proposed agreement relating thereto. For the avoidance of doubt, ifBPW shall keep the Company fully informed, prior on a current basis, of any material changes in the status of any such proposal, inquiry or contact, and any amendment to the receipt of the Company Stockholder Approval, following the receipt financial or other terms of a bona fide written Company BPW Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably shall be expected to lead to treated as a Company Superior new BPW Acquisition Proposal and that was not solicited in violation for purposes of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) 6.3. BPW shall also promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person), the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of notify the Company, the Company Board orally and in writing, if it provides any nonpublic information or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter enters into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to a BPW Acquisition Proposal in accordance with Section 6.3(b).
(d) Nothing contained in this Section 6.3 shall prohibit BPW from taking and disclosing to its stockholders a position required by Rule 14e-2 promulgated under the Exchange Act; provided, that disclosure to stockholders pursuant to Rule 14e-2 relating to a BPW Acquisition Proposal or a proposal regarding a Business Combination (other than the transactions contemplated hereby) shall be deemed to be a qualification, withdrawal or modification, of the BPW Recommendation unless the BPW Board expressly, and without qualification, reaffirms in such disclosure the BPW Recommendation.
(e) BPW agrees that it will, and that it will cause its Representatives to, (i) immediately cease and cause to be terminated any such inquiriesexisting activities, proposal discussions or offers negotiations with any parties conducted heretofore with respect to any BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement), (ii) use reasonable best efforts to cause all Persons other than the Company and its Affiliates who have been furnished with confidential information regarding BPW in connection with the details solicitation of or discussions regarding any material changes BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement) within the 12 months prior to the status and material terms of any date hereof promptly to return or destroy such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofinformation, and including copies (iii) use its reasonable best efforts to enforce and not waive any provision or release any Person (other than the Company and its Affiliates) from any confidentiality, standstill or similar agreement relating to a BPW Acquisition Proposal or Business Combination (other than the transactions contemplated by this Agreement). BPW agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in Section 6.3(a) of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)the obligations undertaken in this Section 6.3.
Appears in 2 contracts
Sources: Merger Agreement (BPW Acquisition Corp.), Merger Agreement (Talbots Inc)
No Solicitation. (a) The Company shallStockholder (in Stockholder’s capacity as such) shall not, shall cause its Subsidiaries to and shall request that its not authorize or permit any of Stockholder’s (to the extent applicable) directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisor or representative retained by Stockholder (collectively, “Representatives”) to, immediately cease directly or indirectly, (i) any communicationssolicit, discussions initiate, or negotiations with any Person that may be ongoing with respect to a Company knowingly encourage, facilitate or knowingly induce the making, submission or announcement of, an Acquisition Proposal, (ii) furnishing furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub, their respective Representatives and the Company’s Representatives) any non-public information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned relating to the Company or destroyed any confidential information that has been provided to any Person during any such communicationsof its Subsidiaries, discussions or negotiations occurring in the six (6) months prior afford access to the date of this Agreement. From and after the date of this Agreement until the earlier to occur business, properties, assets, books or records of the Effective Time Company or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries toto any Person (other than Parent, nor shall it authorize Merger Sub or knowingly permit any designees of its Representatives to (and shall use reasonable best efforts to cause such Persons not toParent or Merger Sub), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company an Acquisition Proposal, (Biii) subject participate or engage in discussions or negotiations with any Person with respect to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company an Acquisition Proposal, (Civ) subject to Section 5.02(b)approve, approve endorse or recommendrecommend an Acquisition Proposal, or publicly propose to approve or recommend, or (v) execute or enter into any letter of intent, memorandum of understanding, merger agreement understanding or other agreement, arrangement Contract contemplating or understanding, in each case otherwise relating to a Company an Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Transaction.
(b) Notwithstanding anything to the contrary in this AgreementStockholder shall immediately cease any and all existing activities, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn discussions or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation negotiations with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information Persons conducted heretofore with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company any Acquisition Proposal or Acquisition Transaction. From and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and date hereof until the end of the original five (5) day period described in clause (ii) above; providedExpiration Date, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board Shareholder shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall as promptly as practicable (and in any event within 24 hours) (i) notify Parent in writing of (x) any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received byit receives in its capacity as a stockholder of the Company, or (y) any request it receives in its capacity as a stockholder of the Company for non-public information with regard relating to such the Company or its Subsidiaries that could lead to an Acquisition Proposal is requested fromor an Acquisition Transaction, or and (z) any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, inquiry it receives in its capacity as a stockholder of the Company that could lead to an Acquisition Proposal, (ii) if such Acquisition Proposal, request or inquiry is in writing, deliver to Parent a copy of such Acquisition Proposal, request or inquiry and any of its Representatives), indicating, in connection with such notice, related draft agreements and other written material setting forth the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiriesAcquisition Proposal, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (iiiii) thereafter if such Acquisition Proposal, request or inquiry is oral, provide to Parent a detailed summary thereof. Stockholder shall keep Parent reasonably informed, informed on a reasonably prompt and timely basis (and, in any event, within 24 hours) of the status and material details of any material discussions such Acquisition Proposal or negotiations Acquisition Transaction and with respect to any such inquiries, proposal or offers and the details of any material changes change to the status and material terms of any such inquiriesAcquisition Proposal or Acquisition Transaction within 24 hours of any such material change.
(c) Without limiting the generality of the foregoing, proposals or offers (including Stockholder acknowledges and hereby agrees that any material amendments thereto violation of the restrictions set forth in this Section 10 by Stockholder or any change of Stockholder’s Representatives shall be deemed to the scope be a breach of this Section 10 by Stockholder. Stockholder shall not enter into any letter of intent or material terms similar document or conditions thereof, any Contract contemplating or otherwise relating to an Acquisition Proposal unless and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)until this Agreement is terminated pursuant to its terms.
Appears in 2 contracts
Sources: Support Agreement (Salesforce Com Inc), Support Agreement (ExactTarget, Inc.)
No Solicitation. (a) The Each of Parent and the Company shallagrees that it shall not, and shall cause its respective Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries not to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use its reasonable best efforts to cause such Persons direct its and its Subsidiaries’ Representatives not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)initiate, encourage, or knowingly facilitate facilitate, any inquiry Takeover Proposal or the making making, announcement or submission consummation thereof, (ii) enter into or otherwise participate in any discussions (except to notify a Person of any inquiry, proposal, indication the existence of interest the provisions of this Section 5.4) or offer which constitutesnegotiations regarding, or would reasonably be expected furnish to lead toany Person any information (regardless of whether such information is material or already publicly available) in connection with, a Company Acquisition or in furtherance of, any Takeover Proposal, (Biii) subject waive, terminate, modify or fail to Section 5.02(b)enforce any provision of any confidentiality or “standstill” or similar obligation of any Person (other than the other party hereto) with respect to a party or any of its Subsidiaries, approve (iv) approve, adopt or recommend, or publicly propose to approve approve, adopt or recommend, a Company Acquisition Proposalany Takeover Proposal or submit to the vote of its shareholders any Takeover Proposal before the termination of this Agreement, (Cv) subject to Section 5.02(b)enter into, or approve or recommend, recommend or publicly propose to approve or recommend, or execute or enter recommend the entering into of any letter of intent, memorandum of understanding, amalgamation or merger agreement or other agreement, arrangement or understanding, in each case understanding relating to a Company Acquisition any Takeover Proposal before the termination of this Agreement (other than an Acceptable a confidentiality agreement referred to in the proviso to the last sentence of this Section 5.4(a)), or (vi) authorize any of, or commit or agree to do any of, the foregoing. Each of Parent and the Company Confidentiality Agreement(A) shall, and shall cause its respective Subsidiaries to, and shall use its reasonable best efforts to direct its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person (other than the other party hereto and its Representatives) conducted heretofore with respect to any Takeover Proposal and (B) shall immediately take all steps necessary to terminate any approval under any confidentiality or “standstill” or similar provision that may have been heretofore given by Parent or the Company under any such provisions authorizing any Person to make a Company Superior Proposal Takeover Proposal. Notwithstanding the foregoing, the restrictions in clauses (each an “Alternative Company Acquisition Agreement”i), (Dii), (iii) enter intoand, continue to the extent applicable thereto, (vi) of the first sentence of this Section 5.4(a) shall not prohibit Parent or otherwise participate its Subsidiaries and Representatives, on the one hand, or the Company or its Subsidiaries and Representatives, on the other hand, at any time before obtaining the Parent Share Issuance Vote or the Company Merger Vote, as the case may be, from participating in any discussions or negotiations regarding regarding, furnishing to any Company Acquisition ProposalPerson any information with respect to, or waiving, modifying or electing not to enforce any confidentiality or “standstill” or similar obligation of any Person in respect of a Takeover Proposal (E) agree to do any of the foregoing; provided, however, if, prior including with respect to the receipt following proviso) that has been publicly announced or otherwise communicated to its officers or its board of the Company Stockholder Approvaldirectors, following the receipt if its board of a bona fide written Company Acquisition Proposal that the Company Board directors (or an authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal would reasonably be likely to lead to a Superior Proposal; provided that (I) before a party furnishing any information to, or negotiating with, any Person with respect to a Takeover Proposal, such party shall have entered into a confidentiality agreement with such Person containing confidentiality terms and “standstill” or similar obligations not less restrictive in the aggregate to such Person and its Representatives than the provisions of the Confidentiality Agreement are to Parent and its Representatives (in the case of the Company furnishing information to, or negotiating with, any Person) or the Company and its Representatives (in the case of Parent furnishing information to, or negotiating with, any Person), and (II) all such information has previously been made available to the Company and its Representatives (in the case of Parent furnishing information to any Person) or Parent and its Representatives (in the case of the Company furnishing information to any Person) or will be so made available substantially concurrent with the time it is provided to such Person.
(b) Neither the board of directors of Parent or the Company nor any committee thereof shall (i) withhold, withdraw, modify or qualify the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in a manner adverse to the Company or Parent, as applicable, (ii) fail to include the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in the Joint Proxy Statement/Prospectus, or (iii) recommend or publicly propose to recommend any Takeover Proposal (any action described in clause (i), (ii) or (iii) being referred to as a “Recommendation Withdrawal”); provided, however, that (A) the delivery by a party, its board of directors or an authorized and empowered committee thereof of any notice specified in Section 5.4(d) shall not be deemed to be or constitute a Recommendation Withdrawal, (B) the provision of factual information by a party to its shareholders shall not be deemed to be or constitute a Recommendation Withdrawal so long as the disclosure through which such factual information is conveyed, taken as a whole, is not contrary to or materially inconsistent with the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company), and (C) for purposes of the definition of Recommendation Withdrawal, (I) in the case of Parent, the term “Parent Recommendation” shall refer only to the recommendation by the board of directors of Parent in respect of the Parent Share Issuance Vote and (II) in the case of the Company, the term “Company Recommendation” shall refer only to the recommendation by the board of directors of the Company in respect of the Company Merger Vote.
(c) Notwithstanding anything to the contrary contained in this Agreement and subject to compliance with Section 5.4(d): (i) at any time before obtaining the Company Merger Vote, the Company’s board of directors (or an authorized and empowered committee thereof) may make a Recommendation Withdrawal (A) in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by the Company’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Company Intervening Event”) or (B) in response to a Takeover Proposal that the Company’s board of directors (or applicable authorized and empowered committee thereof) shall have determined in good faith, after consultation with its outside legal counsel and financial advisors advisor, constitutes a Superior Proposal, in each case, if the Company’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law; and (ii) at any time before obtaining the Parent Share Issuance Vote, the board of directors of Parent (or an authorized and empowered committee thereof) may make a Recommendation Withdrawal in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by Parent’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Parent Intervening Event”) if such Parent’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law. Notwithstanding anything to the contrary contained in this Agreement, (x) no event, development, occurrence, circumstance or fact that affects or relates to Parent or any of its Subsidiaries shall be deemed to be, or contribute to, any Company Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to the Company and/or any of its Subsidiaries, and, in such case, the board of directors of the Company (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to the Company and its Subsidiaries (not including any effect on Parent and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Company Intervening Event, (y) no event, development, occurrence, circumstance or could fact that affects or relates to the Company or any of its Subsidiaries shall be deemed to be, or contribute to, any Parent Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to Parent and/or any of its Subsidiaries, and, in such case, the board of directors of Parent (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to Parent and its Subsidiaries (not including any effect on the Company and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Parent Intervening Event and (z) with respect to Parent, no Takeover Proposal shall be deemed to be a Parent Intervening Event unless (1) such Takeover Proposal is bona fide and in writing, (2) such Takeover Proposal has not been obtained in breach of Section 5.4 and (3) the board of directors of Parent (or applicable authorized and empowered committee thereof) has determined, in the good faith exercise of its fiduciary (or similar) duties, that it shall recommend such Takeover Proposal to its shareholders. For purposes of this Section 5.4(c), each reference to “10% or more” in the definition of “Takeover Proposal” shall be deemed to be a reference to “more than 50%.” For the avoidance of doubt, no increase in the share price of Parent or Company from the date hereof shall be deemed to be a Parent Intervening Event or Company Intervening Event, respectively, provided that this limitation shall not prevent or otherwise affect a determination that any material event, development, occurrence, or change in circumstances or facts underlying such increase in share price has resulted in a Parent Intervening Event or Company Intervening Event.
(d) Notwithstanding anything to the contrary contained in this Agreement, neither party’s board of directors (nor any authorized and empowered committee thereof) shall be entitled to make a Recommendation Withdrawal under Section 5.4(c), unless (i) such party shall have provided to the other party at least three Business Days before taking such action written notice that it intends to make a Recommendation Withdrawal and specifying the reasons therefor (and, if applicable, the information required by Section 5.4(f)), (ii) during such three Business Day period, if requested by the other party, the party delivering such written notice shall have engaged in good faith negotiations with the other party regarding any amendment or waiver to this Agreement proposed by the other party which shall be kept confidential by such party (except to the extent required to be disclosed under applicable Law), (iii) such party has not materially breached its obligations under this Section 5.4 and (iv) solely in the case of a Recommendation Withdrawal by the Company’s board of directors (or an authorized and empowered committee thereof) in response to a Takeover Proposal, the Company’s board of directors (or an authorized and empowered committee thereof) shall have determined, after taking into account all amendments and waivers to this Agreement made in response to such Takeover Proposal, and after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal. The parties agree that any amendment to the financial terms (which shall include any change in (x) the form of consideration or (y) the percentage or allocation of form of consideration) or other material terms and conditions of a Takeover Proposal described in clause (i) above shall require a party to provide new written notification and shall commence a new three Business Day period under this Section 5.4(d).
(e) Notwithstanding anything to the contrary contained in this Agreement, the obligation of each of Parent and the Company to call, give notice of, convene and hold the Parent Shareholder Meeting (in the case of Parent) and the Company Shareholder Meeting (in the case of the Company) and to hold a vote of its shareholders for purposes of obtaining the Required Parent Vote or the Required Company Vote, as applicable, shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Takeover Proposal (whether or not a Superior Proposal) or by a Recommendation Withdrawal made by it. If a party makes a Recommendation Withdrawal under Section 5.4(c), (i) such party shall nevertheless submit the matters contemplated by the Required Parent Vote or the Required Company Vote, as applicable, to a vote of its shareholders and (ii) the Joint Proxy Statement/Prospectus or the Company Shareholder Materials, as applicable, and any and all accompanying materials may include appropriate disclosure with respect to such Recommendation Withdrawal in accordance with applicable Law after consultation with outside legal counsel.
(f) Each party shall as promptly as practicable (and in any event within 24 hours after receipt) advise the other party orally and in writing of (i) any Takeover Proposal (or any withdrawal thereof), (ii) any request for information that would reasonably be expected to lead to a Company Superior Takeover Proposal and that was not solicited in violation of this Section 5.02(a(iii) made after the date of this Agreementany inquiry with respect to, the Company mayor which would reasonably be expected to lead to, in response to such Company Acquisition any Takeover Proposal, such notice to include the material terms and subject to compliance with Section 5.02(b)conditions of any such Takeover Proposal, furnish information with respect to request or inquiry (including a copy of any such written Takeover Proposal, request or inquiry and any amendments or modifications thereto or if oral, a written summary thereof) and the Company to identity of the Person making such the Takeover Proposal, request or inquiry. Each of Parent and the Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, shall keep the other fully informed on a reasonably current basis of the status of any such nonpublic information relating Takeover Proposal, request or inquiry, including any changes to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal material terms and conditions thereof. Each party shall as promptly as practical (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hourshours after becoming aware thereof) following furnishing any such nonpublic information advise the other party orally and in writing of events, developments, occurrences or changes in circumstance that resulted in a Company Intervening Event or Parent Intervening Event, as applicable, in sufficient detail as to allow the other party to analyze and (if appropriate) respond to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)event.
(bg) Notwithstanding anything to the contrary Nothing contained in this AgreementSection 5.4 shall prohibit a party or its board of directors from (i) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act (including a “stop, prior look and listen” communication to Rule 14d-9(f) under the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (IExchange Act) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (Bii) there has been a Company Intervening Event; (II) in the case making any disclosure to its shareholders if its board of a Company Acquisition Proposal, the Company Board concludes directors determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s its outside legal counsel, that the failure to make a Company Adverse Recommendation Change such disclosure would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or provided that any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).tak
Appears in 2 contracts
Sources: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries Subject to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Section 5.2(b), the Company shall not, nor shall it authorize or permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to or their respective directors, officers or employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives (and shall use reasonable best efforts to cause such Persons not collectively, “Representatives”) to), directly or indirectly, ; (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would is reasonably be expected likely to lead to, to a Company Acquisition Takeover Proposal, ; (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Takeover Proposal, furnish to any Third Party any information (whether orally or in writing) in connection with, or in furtherance, of any Takeover Proposal, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, is seeking to make or has informed the Company of any intention to make, or has publicly announced an intention to make, a Takeover Proposal; (Eiii) agree fail to do make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Offer Recommendation or Merger Recommendation (it being understood that taking a neutral position or no position with respect to any Takeover Proposal shall be considered an adverse modification), recommend, adopt or approve, or publicly propose to recommend, adopt or approve, a Takeover Proposal, or take any action or make any statement inconsistent with the Offer Recommendation or Merger Recommendation (any of the foregoingforegoing in this clause (iii), a “Company Adverse Recommendation Change”); provided(iv) take any action not already taken to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approving any transaction under, howeveror a Third Party becoming an “interested stockholder” under Section 203 of the DGCL, ifor any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation or bylaws, prior inapplicable to any transactions contemplated by a Takeover Proposal; (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to a Takeover Proposal (other than a confidentiality agreement of the receipt type referred to in Section 5.2(b)); or (vi) grant any Third Party any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company Stockholder Approvalor any of its Subsidiaries. Without limiting the foregoing, following it is agreed that any violation of the receipt of a bona fide written Company Acquisition Proposal that restrictions on the Company Board determines set forth in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is preceding sentence by any Representative of the Company or could reasonably any of its Subsidiaries shall be expected to lead to a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a5.2(a) made after by the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Company.
(b) Notwithstanding anything to the contrary in Section 5.2(a), at any time prior to the Acceptance Time (and in no event after the Acceptance Time), the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to compliance with Section 5.2(c), (i) engage in negotiations or discussions with any Third Party that has made after the date of this Agreement, prior Agreement a Superior Proposal or a bona fide Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with a financial advisor of nationally recognized reputation and outside legal counsel) may be reasonably likely to lead to the receipt of a Superior Proposal and the Company Stockholder Approval, the Company Board may effect making of such Superior Proposal or such Takeover Proposal did not result from a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation breach of Section 5.02(a5.2(a); (ii) is made thereafter, furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms overall no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall, subject to Section 5.2(c), be provided, promptly after its execution, for informational purposes only to Parent, and which copy and the terms and existence thereof shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement); provided, that, subject to Section 5.2(c), all such information (to the extent that such information has not been previously provided or made or had been previously made available to Parent) is provided or made or had been previously made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party), and provided, further, that if such Superior Proposal or Takeover Proposal is made by a Third Party who or which, on the date hereof, is party to a confidentiality agreement with the Company which would prohibit the Company from complying with any of the terms of this Section 5.2(b) or Section 5.2(c) requiring the provision by the Company of information, agreements or the documents to Parent, then the Company may take the actions described in clauses (i) and (ii) of this Section 5.2(b) only if such Company Acquisition Proposal is not withdrawn or (B) there confidentiality agreement with such Third Party has been a Company Intervening Event; amended (II) in the case of a Company Acquisition Proposal, and the Company Board concludes in good faith, after consultation shall be permitted to amend such confidentiality agreement) to allow the Company to fully comply with the Company’s outside financial advisors such terms of this Section 5.2(b) and outside legal counsel, that Section 5.2(c) without violating such Company Acquisition Proposal constitutes a Company Superior Proposalconfidentiality agreement; and (IIIiii) following receipt of a Superior Proposal after the Company Board concludes in good faithdate of this Agreement, after consultation pursuant to Section 5.2(e) and subject to compliance with the Company’s outside legal counselSection 5.2(d), that the failure to make a Company Adverse Recommendation Change and terminate this Agreement pursuant to Section 7.1(f) (provided that clauses (i) through (iii) thereof and Section 5.2(d) have been satisfied), but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith by a majority vote, after consultation with outside legal counsel to the Company, that its failure to take such action would be inconsistent with the its fiduciary duties under applicable Legal Requirements.
(c) The Board of Directors of the Company Board under applicable Law; provided, however, none shall not take any of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company actions referred to enter into any Alternative Company Acquisition Agreement unless:
in clauses (i) and (ii) of Section 5.2(b) unless the Company Board provides shall have delivered to Parent at least five (5) days’ a prior written notice of its intention advising Parent that it intends to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02action, and the Company shall continue to advise Parent after taking such action of the status and terms of any discussions and negotiations with the Third Party. In addition, the Company shall notify Parent promptly (but in any no event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within than 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, after receipt by the Company (or any of its Representatives)) of any Takeover Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, indicatingproperties, in connection with such noticeassets, the identity books or records of the Person Company or group any of Persons making its Subsidiaries by any Third Party that may be considering making, or has made, a Takeover Proposal, which notice shall be provided orally and in writing and shall identify the inquiryThird Party making, proposal and the material terms and conditions of, any such Takeover Proposal, indication or offer request (including any changes thereto). The Company shall keep Parent reasonably informed on a current basis of the status and details of any such Takeover Proposal, indication or request (including any material changes thereto) and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all correspondence and written materials sent or provided to the Company or any of its Subsidiaries that describe the material terms and conditions of any such inquiriesTakeover Proposal.
(d) Notwithstanding Section 5.2(b), proposals or offers the Board of Directors of the Company shall not take an action described in clause (and providing copies iii) of all related written inquiries, proposals or offers, including proposed agreementsSection 5.2(b) and unless (iii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (andthe Company promptly notifies Parent, in writing at least five business days before taking that action, of its intention to do so in response to a Takeover Proposal that constitutes a Superior Proposal, attaching the most current version of any event, within 24 hours) proposed agreement or a detailed summary of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiriesproposal and the identity of the offeror, proposals or offers and (including ii) Parent does not make, within such five-business-day period, an offer that is at least as favorable to the stockholders of the Company, as determined by the Board of Directors of the Company in good faith (after considering the advice of a financial advisor of nationally-recognized reputation), as such Superior Proposal (it being understood that the Company shall not take any action described in clause (iii) of Section 5.2(b) during such five-business-day period, and that any material amendments thereto amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company and an additional five-business-day period).
(e) The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all existing soliciting activities, discussions or negotiations and nonpublic information access, if any, with or to any Third Party conducted prior to the date hereof with respect to any Takeover Proposal. The Company shall promptly request that each Third Party, if any, in possession of the confidential information about the Company or any change to of its Subsidiaries that was furnished by or on behalf of the scope Company or material terms or conditions thereof, and including copies any of its Subsidiaries in connection with its consideration of any written inquiries, proposals potential Takeover Proposal to return or offers, including proposed agreements and material modifications thereto)destroy all confidential information heretofore furnished to such Third Party.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement Time, except as specifically permitted in accordance with ARTICLE 9Section 5.4(d), the Company shall not, agrees that neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly:
(i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)providing information) or facilitate any inquiries, proposals or offers with respect to, or knowingly facilitate any inquiry the making, or the making completion of, a Takeover Proposal;
(ii) participate or submission of engage in any inquiry, proposal, indication of interest discussions or offer which constitutesnegotiations with, or would reasonably be expected furnish or disclose any non-public information relating to lead the Company or any of its Subsidiaries to, or otherwise cooperate with or assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company Acquisition Board Recommendation in any manner adverse to MergerCo;
(iv) approve, endorse or recommend any Takeover Proposal, ;
(Bv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understandingagreement in principle, merger agreement, acquisition agreement, option agreement or other agreement, arrangement or understanding, in each case similar agreement relating to a Company Acquisition Proposal Takeover Proposal; or
(other than an Acceptable Company Confidentiality Agreementvi) resolve, propose or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided.
(b) The Company shall, howeverand shall cause each of its Subsidiaries and Representatives to, ifimmediately cease any solicitations, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is discussions or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after negotiations existing on the date of this Agreement, Agreement with any Person (other than the parties hereto) that has made or indicated an intention to make a Takeover Proposal. The Company may, shall promptly inform its Representatives of the Company’s obligations under this Section 5.4.
(c) The Company shall notify MergerCo promptly (and in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to any event no later than the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that earlier of (1) within 48 hours of receipt or (2) 24 hours prior to furnishingtaking any action contemplated by this Section 5.4) upon receipt by it or its Subsidiaries (after the Company or its Representatives obtains Knowledge thereof) or Representatives of (i) any Takeover Proposal, or causing to be furnished, (ii) any such nonpublic request for non-public information relating to the Company or any of its Subsidiaries other than requests for information unrelated to such Person, a Takeover Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Takeover Proposal. The Company shall notify MergerCo promptly (and in any event no later than the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal earlier of (an “Acceptable Company Confidentiality Agreement”1) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution within 48 hours of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct receipt or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, hours prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (Itaking any action contemplated by this Section 5.4) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery identity of such notice Person and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Takeover Proposal, indication, inquiry or request (or, where no such copy is available or the disclosure thereof would cause the Takeover Proposal and any related Alternative Company Acquisition Agreementto be void, or (B) the facts and circumstances in reasonable detail a description of the Company Intervening Event;
(ii) during the five (5) days following material terms and conditions of such written notice described in the foregoing clause (i) (Takeover Proposal, indication, inquiry or such shorter period as is specified in this Section 5.02(b) belowrequest), the including any material modifications thereto. The Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors shall keep MergerCo reasonably informed on a current basis (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrencethe occurrence of any material changes, developments, discussions or negotiations) notify Parent of the status of any such new Company Acquisition Proposal Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including, except where the Parties shall comply with disclosure thereof would cause the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Takeover Proposal to Parent and be void, furnishing copies of any written revised proposals. Without limiting the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01foregoing, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent MergerCo orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.4(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any inquiriesof its Subsidiaries is party to any agreement, proposals which prohibits the Company from providing such information to MergerCo.
(d) Notwithstanding the foregoing, the Company shall be permitted, if it has otherwise complied with its obligations under this Section 5.4, but only prior to the satisfaction of the condition set forth in Section 6.1(a), to:
(i) engage in discussions or offers negotiations with respect a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, (A) the Company enters into an Acceptable Confidentiality Agreement with such Person and (B) the Company Board determines in good faith (1) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal and (2) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company Acquisition Proposal that are received by, under applicable Laws;
(ii) furnish or disclose any non-public information with regard relating to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its RepresentativesSubsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, the Company Board determines in good faith (A) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to MergerCo if such non-public information has not previously been disclosed to MergerCo;
(iii) withdraw, modify or amend the Company Board Recommendation in a manner adverse to MergerCo or ParentCo (a “Recommendation Change”), indicatingif the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws; provided that, if such action is in connection response to or relates to a Takeover Proposal, then the Recommendation Change shall be taken only in compliance with Section 5.4(d)(iv);
(iv) in response to a Takeover Proposal not solicited in violation of this Section 5.4 which the Company Board has determined in good faith, after consultation with its outside financial advisor, constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by MergerCo pursuant to the provisos to this paragraph, (x) effect a Recommendation Change or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, such termination to be effective only if in advance of or concurrently with such noticetermination the Company pays the Termination Fee in the manner provided for in Section 7.6(a); provided that the Company shall not make a Recommendation Change or terminate this Agreement unless: (1) the Company Board has determined in good faith, after consultation with outside legal counsel, that the identity failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Person or group Company under applicable Laws, (2) the Company shall have given MergerCo prompt written notice advising MergerCo of Persons making (A) the inquiry, proposal or offer decision of the Company Board to take such action and (B) the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offersthe Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed agreementstransaction agreements with such party and other material documents, (3) the Company shall have given MergerCo five Business Days (or three Business Days in the event of each subsequent material revision to such Takeover Proposal) after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with MergerCo with respect to such proposed revisions or other proposal, if any, and (4) at the end of such period, the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by MergerCo, if any, after consultation with outside legal counsel, that (A) in the case of a Recommendation Change, failure to take such action would be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Takeover Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by MergerCo; provided that, in the event the Company Board does not make the determination referred to in clause (4) of this paragraph but thereafter determines to effect a Recommendation Change or to terminate this Agreement pursuant to this Section 5.4(d)(iv), the procedures referred to in clauses (1) – (4) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification.
(e) Section 5.4(d) shall not prohibit the Company Board from disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall be deemed to be a withdrawal, modification or amendment of the Company Board Recommendation in a manner adverse to MergerCo unless the Company Board (x) expressly reaffirms its recommendation to its shareholders in favor of approval of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any action to (i) amend the Company Rights Agreement or redeem the Rights (as defined in the Company Rights Agreement), or (ii) thereafter shall keep Parent reasonably informed, exempt any Person from the restrictions on a reasonably prompt basis “business combinations” contained in Section 490.1110 of the IBCA (andor any similar provisions) or otherwise cause such restrictions not to apply, in any eventeach case, within 24 hours) unless such actions are taken simultaneously with a termination of the status of any material discussions or negotiations this Agreement in accordance with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)its terms.
Appears in 2 contracts
Sources: Merger Agreement (Bandag Inc), Merger Agreement (Bandag Inc)
No Solicitation. (a) The Company shall, agrees that it shall cause its Subsidiaries to and shall request that its Representatives, --------------- immediately cease (i) any communicationsand cause to be terminated all existing discussions, discussions or negotiations and communications with any Person that may be ongoing Persons with respect to a Company any Acquisition Proposal. Except as provided in Section 5.3(b), (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after from the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9or the Effective Time, the Company shall not, nor not and shall it permit any of its Subsidiaries to, nor shall it not authorize or knowingly permit any of its Representatives officers, directors, employees, investment bankers, attorneys, accountants or other agents (collectively, "Representatives") to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly (i) initiate, (A) solicit, initiate --------------- solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)encourage, or knowingly take any action to facilitate any inquiry or the making of, any offer or submission of any inquiry, proposal, indication of interest proposal which constitutes or offer which constitutes, or would may be reasonably be expected likely to lead to, a Company to any third-party Acquisition Proposal, Proposal or (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating with respect to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (Eiii) agree to do in the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent or any of its affiliates or representatives) relating to any Acquisition Proposal. Notwithstanding the foregoing; , nothing contained in this Section 5.3 shall prohibit the Company or the Company Board of Directors from (x) in the event of an unsolicited Acquisition Proposal, requesting from the third party such information as may be reasonably necessary for the Company Board of Directors to inform themselves as to the material terms of such Acquisition Proposal for the sole purpose of determining whether such Acquisition Proposal constitutes a Superior Proposal, provided, howeverthat (i) the Company Board of Directors shall have determined, ifin good faith after being advised by outside legal counsel, that taking such action with respect to an Acquisition Proposal from such third party is necessary in order for the Company Board of Directors to discharge its fiduciary duties under applicable law and (ii) upon receipt of such information requested from the third party, neither the Company nor any of its Representatives shall be permitted to engage in any further discussion or negotiations with any such third party that would otherwise violate paragraph (a) of this Section 5.3, (y) taking (and disclosing to the Company's stockholders) its position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (z) making such disclosure to the Company's stockholders as in the good-faith judgment of the Company Board of Directors, after receipt of advice from outside legal counsel to the Company, that such disclosure is necessary for the Company Board of Directors to comply with its fiduciary duties under applicable law.
(b) Notwithstanding the foregoing, prior to the receipt acceptance of Shares pursuant to the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this AgreementOffer, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), may furnish information with respect concerning its business, properties or assets to the Company any Person pursuant to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent terms no less favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as (other than with respect to any standstill provision contained therein), dated May 29, 2001 entered into between Parent and the Company (the "Confidentiality Agreement") and may negotiate and participate ------------------------- in effect immediately prior discussions and negotiations with such Person concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal is reasonably likely to be consummated (taking into account the execution legal aspects of the proposal, the Person making the Acquisition Proposal and approvals required in connection therewith); (y) such entity or group has on an unsolicited basis, and in the absence of any violation of this Agreement (providedSection 5.3 by the Company, that such agreement does not need to contain any provision prohibiting (includingsubmitted a bona fide, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)fully financed, and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made proposal to the Company by a Third Party and relating to any such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in transaction which the case Board of a Company Acquisition Proposal, the Company Board concludes Directors determines in good faith, after consultation with receiving advice from the Company’s outside 's financial advisors and outside legal counseladvisors, that such Company Acquisition Proposal constitutes is more favorable than the Offer to the Company's stockholders from a Company Superior Proposal; financial point of view, and (IIIz) in the good faith opinion of the Company Board concludes in good faithof Directors, after consultation with outside legal counsel to the Company’s outside legal counsel, that providing such information or access or engaging in such discussions or negotiations is in the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties best interests of the Company and its stockholders and necessary in order for the Company Board of Directors to discharge its fiduciary duties to the Company's stockholders under applicable Law; providedlaw (an Acquisition Proposal which satisfies clauses (x), however(y) and (z) being referred to herein as a "Superior Proposal"). The Company shall promptly, none ----------------- and in any event within two business days following receipt of a Superior Proposal and prior to providing any such party with any material non-public information, notify Parent of the Companyreceipt of the same. The Company shall promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent, such additional information to be provided no later than the date of provision of such information to such other party.
(c) Except as set forth herein, neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Transactions, to Parent or to the Purchaser, the approval or recommendation by the Company Board of Directors of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
of Directors may (i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions subject to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal and the following sentence) withdraw or Company Intervening Event, as applicable; and
(iii) at the end modify its approval or recommendation of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)Offer, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by or the Company)Merger, thatapprove or recommend a Superior Proposal, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) enter into an agreement with respect to a Superior Proposal (an "Acquisition Agreement"), in each case at any time after --------------------- the third business day following the Company's delivery to Parent of written notice advising Parent that the Company Board of Directors has received a Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided, -------- however, that the Company shall not enter into an agreement with respect to a ------- Superior Proposal unless the Company complies with Section 5.3(d).
(d) The Company may terminate this Agreement and enter into an Acquisition Agreement with respect to such Superior Proposal, provided that, -------- prior to any such inquiriestermination, proposals or offers (i) the Company has provided Parent written notice that it intends to terminate this Agreement pursuant to this Section 5.3(d), identifying the Superior Proposal then determined to be more favorable and providing copies the parties thereto and delivering a copy of all related written inquiriesthe Acquisition Agreement for such Superior Proposal in the form to be entered into, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on within a reasonably prompt basis (and, in any event, within 24 hours) period of three business days following the delivery of the status notice referred to in clause (i) above, Parent does not propose adjustments in the terms and conditions of any material discussions or negotiations with respect to any such inquiries, proposal or offers this Agreement and the details Company shall have caused its financial and legal advisors to negotiate with Parent in good faith such proposed adjustments in the terms and conditions of any material changes this Agreement which the Company Board of Directors determines in its good faith judgment (after receiving the advice of its financial advisor) to be as favorable to the status and material terms of any Company's stockholders as such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofSuperior Proposal, and including copies (iii) at least three full business days after the Company has provided the notice referred to in clause (i) above, the Company delivers to Parent (A) a written notice of any written inquiriestermination of this Agreement pursuant to this Section 5.3(d), proposals or offers, including proposed agreements and material modifications thereto(B) a wire transfer of immediately available funds in the amount of the Termination Fee (as defined in Section 8.2(b)).
Appears in 2 contracts
Sources: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request Each Stockholder hereby agrees that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and during the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date term of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company it shall not, nor and shall it not permit any of its Subsidiaries Subsidiaries, Affiliates or Representatives to, nor shall it authorize (i) initiate, solicit, encourage or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage facilitate (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or providing information) the making or submission of any inquiryinquiries, proposal, indication of interest proposals or offer which constitutes, offers (whether firm or would hypothetical) or any other efforts or attempts that constitute or may reasonably be expected to lead to, a Company any Acquisition Proposal, (Bii) subject have any discussions with or provide any confidential information or data to Section 5.02(b)any person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, (iii) approve or recommend, or publicly propose to approve or recommend, a Company any Acquisition Proposal, (Civ) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into into, any letter of intent, agreement in principle, memorandum of understanding, merger agreement, asset or share purchase or share exchange agreement, option agreement or other agreement, arrangement or understanding, in each case relating similar agreement related to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, (v) enter into any agreement or agreement in principle requiring, directly or indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or breach its obligations thereunder, (vi) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Agreement, or (Evii) publicly propose or agree to do any of the foregoing; provided. Each Stockholder hereby agrees immediately to cease and cause to be terminated any activities, howeverdiscussions or negotiations conducted before the date of this Agreement with any Persons other than Acquiror with respect to any Acquisition Proposal, if, prior and will take the necessary steps to the receipt inform its Affiliates and Representatives of the Company obligations undertaken by such Stockholder Approvalpursuant to this Agreement, following the receipt of a bona fide written Company Acquisition Proposal including this Section 4.3. Each Stockholder also agrees that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in any violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, 4.3 by any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment Affiliates or update thereto and the determination to so deliver such notice, update or amendment Representatives shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes violation by such Stockholder of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)4.3.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Voting Agreement (optionsXpress Holdings, Inc.), Voting Agreement (Schwab Charles Corp)
No Solicitation. (a) The Company Romeo agrees that neither it nor any of its Subsidiaries shall, nor shall cause it nor any of its Subsidiaries to and shall request that authorize or permit any of the Representatives retained by it or any of its RepresentativesSubsidiaries to, immediately cease directly or indirectly: (i) solicit, initiate, respond to or take any communicationsaction to facilitate or encourage any inquiries or the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) enter into or participate in any discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and or Acquisition Inquiry; (iii) cooperating with, assisting in, participating in, furnish any information regarding Romeo or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to any Person in connection with, in response to, nor shall it authorize relating to or knowingly permit for the purpose of assisting with, facilitating or encouraging an Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any of its Representatives to Acquisition Proposal (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, 6.1) (Cv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understandingagreement in principle, term sheet, acquisition agreement, joint venture agreement, partnership agreement, merger agreement, option agreement or other agreement, arrangement similar document or understanding, in each case any Contract contemplating or otherwise relating to a Company any Acquisition Proposal Transaction (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”); or (vi) grant any waiver or release under any confidentiality, standstill or similar agreement (Dother than to Nikola) enter into, continue or otherwise participate in approve any discussions or negotiations regarding any Company Acquisition Proposaltransaction under, or (E) agree to do any third party becoming an “interested stockholder” under, Section 203 of the foregoing; provided, however, ifDGCL.
(b) Notwithstanding anything contained in Section 5.4(a), prior to the receipt of the Company Stockholder ApprovalAcceptance Time, following the receipt of (i) Romeo may enter into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide written Company fide, unsolicited, Acquisition Proposal that the Company Proposal, which Romeo’s Board of Directors determines in good faith, after consultation with the Company’s outside its independent financial advisors advisor and its outside legal counsel, constitutes, or is or could reasonably be expected likely to lead to to, a Company Superior Proposal Offer, and that was not solicited in violation of this Section 5.02(a(ii) made after the date of this Agreement, the Company may, in response thereafter furnish to such Company Acquisition Proposal, and subject Person non-public information regarding Romeo pursuant to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an including nondisclosure provisions, use restrictions, non-solicitation provisions, no-hire provisions and “Acceptable Company Confidentiality Agreement”standstill” provisions) that (x) does not contain any provision that would prevent the Company from complying with its obligation at least as favorable to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than Romeo as those contained in the Confidentiality Agreement as Agreement, but in effect immediately prior to each case of the execution of this Agreement foregoing clauses (provided, that such agreement does not need to contain any provision prohibiting i) and (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposalii), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) : (A) a written Company Acquisition Proposal that was not solicited in violation neither Romeo nor any Representative of Romeo has breached this Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or 5.4; (B) there has been a Company Intervening Event; (II) in the case Romeo Board of a Company Acquisition Proposal, the Company Board concludes Directors determines in good faith, after consultation with faith based on the Company’s outside financial advisors and advice of outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, counsel that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with the fiduciary duties of the Company Romeo Board of Directors under applicable LawLegal Requirements; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(iC) the Company Board provides Parent at least five twenty-four (524) days’ hours prior to furnishing any such non-public information to, or entering into discussions with, such Person, Romeo (x) gives Nikola written notice of its the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements and proposed financing) made thereby, and Romeo’s intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the furnish nonpublic information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreementto, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following enter into discussions with, such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders MeetingPerson; and (y) furnishes concurrently such non-public information to Nikola (to the extent such non-public information has not been previously furnished by Romeo to Nikola). Without limiting the generality of the foregoing, Romeo acknowledges and agrees that, in the event there any Romeo Representative (whether or not such Representative is purporting to act on behalf of Romeo) takes any action that, if taken by Romeo, would constitute a Company Adverse Recommendation Change made in compliance with breach of this Section 5.02(b) with respect to a Company Superior Proposal5.4 by Romeo, the Company taking of such action by such Representative shall only enter into an Alternative Company Acquisition Agreement with respect thereto be deemed to constitute a breach of this Section 5.4 by terminating Romeo for purposes of this Agreement in accordance with Section 9.01(h).
(c) In addition Agreement. Notwithstanding anything to the obligations of Parent and the Company contrary set forth in this Section 5.02(a5.4, if the Romeo receives a bona fide written Acquisition Proposal or Acquisition Inquiry from a third party that was not initiated, sought, solicited, knowingly facilitated, knowingly encouraged, knowingly induced or otherwise procured in violation of this Agreement, then Romeo may contact the Person or any of its Representatives who has made such Acquisition Proposal or Acquisition Inquiry solely to clarify the terms of such Acquisition Proposal or Acquisition Inquiry so that the Romeo Board of Directors may inform itself about such Acquisition Proposal or Acquisition Inquiry and to inform such Person or its Representatives of this Section 5.4; provided that such action may only be to request from such Person a written response to questions for the purpose of clarifying such Acquisition Proposal or Acquisition Inquiry (and not for the purpose of engaging, directly or indirectly, in any discussions or negotiations of any sort regarding the material terms of the Acquisition Proposal or Acquisition Inquiry); provided further (x) and Section 5.02(b)simultaneously with sending any written communication to such Person, the Company Romeo shall deliver to Nikola a copy of such written communication, and (iy) shall promptly (and in any event within 24 hours) notify Parent after receiving any communication from such Person, the Romeo shall deliver to Nikola a copy of such communication.
(c) If Romeo or any Romeo Representative receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then Romeo shall promptly (and in no event later than twenty-four (24) hours after Romeo becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Nikola orally and in writing of any inquiries, proposals or offers with respect to a Company such Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company Inquiry (or any of its Representatives), indicating, in connection with such notice, including the identity of the Person making or group of Persons making submitting such Acquisition Proposal or Acquisition Inquiry, the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers thereof (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) financing), and (ii) thereafter any written materials submitted therewith). Romeo shall keep Parent reasonably Nikola informed, on a reasonably prompt basis (andcurrent basis, in all material respects with respect to the status and terms of any eventsuch Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto, within 24 and shall deliver copies of any written materials submitted therewith. In addition to the foregoing, Romeo shall provide Nikola with at forty-eight (48) hours’ written notice (or such shorter period of notice provided to its board of directors) of the status a meeting of its board of directors (or any material committee thereof) at which its board of directors (or any committee thereof) is reasonably expected to consider an Acquisition Proposal or Acquisition Inquiry Romeo has received.
(d) Romeo shall and shall cause its Representatives to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its Representatives to continue, any and all existing activities, discussions or negotiations negotiations, if any, with any third party conducted prior to the date of this Agreement with respect to any such inquiries, proposal Acquisition Proposal or offers Acquisition Inquiry and the details of any material changes shall use its reasonable best efforts to the status and material terms of cause any such inquiries, proposals third party (or offers its Representatives) in possession of non-public information in respect of Romeo or its Subsidiaries that was furnished by or on behalf of Romeo or its Subsidiaries to return or destroy (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)confirm destruction of) all such information.
Appears in 2 contracts
Sources: Merger Agreement (Nikola Corp), Merger Agreement (Romeo Power, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Agreement, the Company shall not, nor shall it not and will not authorize or permit any of its Subsidiaries toofficers, nor shall it authorize directors, employees, financial advisors, representatives or knowingly permit any of its Representatives agents to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)seek, initiate, or knowingly facilitate encourage any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesproposals that constitute, or would be reasonably be expected likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company Acquisition Proposaland its Subsidiaries, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal taken as whole (other than an Acceptable Company Confidentiality Agreementthe sale of inventory or obsolete property in the ordinary course of business), sale of shares of its capital stock (including without limitation by way of a tender offer) or a Company Superior Proposal similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (each any of the foregoing inquiries or proposals being referred to in this Agreement as an “Alternative Company Acquisition Agreement”"ACQUISITION PROPOSAL"), (Dii) enter intoengage in negotiations or discussions with any Person other than Parent or its affiliates (a "THIRD PARTY") concerning, continue or otherwise participate in provide any discussions or negotiations regarding non-public information to any Company Person relating to, any Acquisition Proposal, or (Eiii) agree to do or recommend any of the foregoingAcquisition Proposal; providedPROVIDED, howeverHOWEVER, if, prior to the receipt of that nothing contained in this Agreement shall prevent Company or the Company Stockholder ApprovalBoard or the Special Committee from (A) furnishing nonpublic information to, following the receipt of a or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is by such Person or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information modifying or withdrawing its recommendation with respect to the Company transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the Person making such Company Acquisition Proposal Shareholders, if and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, only to the extent that (1) the Company Board or the Special Committee believes in good faith (after consultation with its financial and legal advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is required for the Company Board or the Special Committee to comply with its fiduciary duties to the Shareholders under applicable law and (2) prior to furnishingfurnishing such non-public information to, or causing to be furnishedentering into discussions or negotiations with, any such nonpublic information relating to the Company to such Person, the Company enters into a Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are terms no less restrictive on such Person favorable to Company than those contained in the Confidentiality Agreement Agreement, dated April 21, 1999 between Babbage's Etc., LLC and Company, as supplemented by letter agreement, dated April 7, 2000, by and among Parent, Babbage's Etc., LLC and Company (as supplemented, the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Company agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, an Acquisition Proposal, unless the Company Board or the Special Committee determines in effect immediately prior to the execution of this Agreement (provided, good faith after consultation with outside legal counsel that such agreement does not need action is necessary for the Company Board or the Special Committee to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but comply with its fiduciary duties to its Shareholders under applicable law. Notwithstanding anything stated in any event within 24 hours) following furnishing any such nonpublic information to such Personthis Section 6.3, the Company furnishes such nonpublic information need not refuse a request from any Person who has signed a standstill agreement with the Company to Parent (make an Acquisition Proposal to the extent Chief Executive Officer or the Board of Directors of the Company if the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such nonpublic information has not been previously so furnished action is necessary for the Company Board or the Special Committee to Parent or comply with its Representatives)fiduciary duties to Shareholders under applicable law.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Company shall notify Parent immediately after receipt by Company (or its advisors) of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company any Acquisition Proposal that was not solicited or any request for nonpublic information in violation of Section 5.02(a) is made to the Company by a Third Party and such Company connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is not withdrawn considering making, or (B) there has been a Company Intervening Event; (II) in the case of a Company made, an Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which . Such notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified be made orally and in Section 5.02(c), as well as a copy of such Company Acquisition Proposal writing and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances shall indicate in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice conditions of such new Company Acquisition Proposal to Parent and the end of the original five proposal, inquiry or contact (5) day period described in clause (ii) above; providedincluding, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such noticewithout limitation, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter Acquisition Proposal). Company shall continue to keep Parent reasonably informed, on a reasonably prompt basis (andcurrent basis, in any event, within 24 hours) of the status of any material such discussions or negotiations with respect to any such inquiries, proposal or offers and the details terms being discussed or negotiated.
(c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by the Company Board or the Special Committee, as the case may be, of any material changes the Offer, this Agreement or the Merger unless the Company Board or the Special Committee, as the case may be, determines, in the exercise of its fiduciary duties, that it is necessary to do so. Nothing contained in this Section 6.3(c) will prohibit Company from taking and disclosing to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to Shareholders a position contemplated by Rule 14e-2 promulgated under the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of (i) the Effective Time Time, (ii) the date that is six months from the date hereof, or (iii) the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Section 7 hereof, the Company Target shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly through any officer, director, employee, representative or agent of Target or otherwise, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)initiate, or knowingly facilitate encourage any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesproposals that constitute, or would could reasonably be expected to lead to, a Company proposal or offer for a merger, consolidation, share exchange, business combination, sale of all or substantially all assets, sale of shares of capital stock or similar transactions involving Target other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage or participate in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal, or (Biii) subject to Section 5.02(b)agree to, enter into, accept, approve or recommendrecommend any Acquisition Proposal. Target represents and warrants that it has the legal right to terminate any pending discussions or negotiations relating to an Acquisition Proposal without payment of any fee or other penalty.
(b) From and after the date of this Agreement until the earlier of (i) the Effective Time, (ii) the date that is six months from the date hereof, or publicly propose to approve or recommend, a Company Acquisition Proposal, (Ciii) subject the date of termination of this Agreement pursuant to Section 5.02(b)7 hereof, approve Acquiror will not, directly or recommendindirectly, through any shareholder, officer, director, employee, affiliate or agent of Acquiror, or publicly propose otherwise, take an action to approve solicit, initiate, seek, entertain, encourage or recommendsupport any inquiry, proposal or offer from, furnish any information to, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations with, any third party regarding any Company Acquisition Proposal, or (E) agree to do any acquisition of the foregoing; providedassets, howeverbusinesses, if, prior to the receipt of the Company Stockholder Approval, following the receipt capital stock of a bona fide written Company Acquisition Proposal company in a similar industry to Target or any merger, consolidation or business combination with or involving a company in a similar industry to Target. Acquiror agrees that the Company Board determines any such discussions or negotiations (other than discussions or negotiations with Target) in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation process as of this Section 5.02(a) made after the date of this Agreement, the Company mayAgreement will be suspended during such period and that, in response to such Company Acquisition Proposalno event, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions will Acquiror accept or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of agreement concerning any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any third-party transaction during such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)period.
Appears in 2 contracts
Sources: Merger Agreement (Wachtel Harry M), Merger Agreement (Autoinfo Inc)
No Solicitation. (a) Upon the execution and delivery of this Agreement, the Company will immediately cease and cause to be terminated any existing negotiations with any third party relating to any Alternative Acquisition Proposal. The Company shall, shall cause its Subsidiaries to promptly (and shall in any event within three (3) Business Days following the date hereof) request in writing that its Representatives, immediately cease (i) any communications, discussions or negotiations with any each Person that may be ongoing entered into a confidentiality or other similar agreement with respect to a the Company Acquisition Proposalor any of its Subsidiaries since January 1, 2008 and (ii) furnishing each Person to which the Company or any of its Subsidiaries furnished confidential information since January 1, 2008 under a confidentiality or other similar agreement existing as of such date, in each case in connection with a potential Alternative Acquisition Transaction, return or destroy (to the extent destruction of such information is permitted by such confidentiality agreement) all confidential information furnished to such Person by or behalf of the Company thereunder.
(b) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 7 and the Acceptance Time, the Company and its Subsidiaries will not, and will use all reasonable efforts to cause (including directly instructing) any of their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney or other advisors or representatives retained by any of them (collectively, the “Company Representatives”) not to (and shall not authorize any of them to), directly or indirectly: (i) solicit, initiate or knowingly encourage, facilitate or induce the making, submission or announcement of any Alternative Acquisition Proposal or Acquisition Transaction; (ii) engage in any negotiations with a third party concerning any Alternative Acquisition Proposal or Acquisition Transaction, (iii) furnish to any Person (other than Parent, Merger Acquisition Sub or any designees of Parent or Acquisition Sub, their respective Representatives and the Company’s Representatives) any non-public information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned relating to the Company or destroyed any confidential information that has been provided to any Person during any such communicationsof its Subsidiaries, discussions or negotiations occurring in the six (6) months prior afford access to the date of this Agreement. From and after the date of this Agreement until the earlier to occur business, properties, assets, books or records of the Effective Time Company or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries toto any Person (other than Parent, nor shall it authorize Acquisition Sub or knowingly permit any designees of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)Parent or Acquisition Sub) in either case, directly in connection with any Alternative Acquisition Proposal or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)Acquisition Transaction, or knowingly take any other action intended to assist or facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would could reasonably be expected to lead toto any Alternative Acquisition Proposal or Acquisition Transaction; (iv) approve, a Company endorse or recommend any Alternative Acquisition Proposal, Proposal or Acquisition Transaction; (Bv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement understanding or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal Contract (other than an Acceptable a confidentiality agreement as contemplated in this Section 5.2(b)) contemplating or otherwise relating to any Alternative Acquisition Proposal or Acquisition Transaction; or (vi) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company Confidentiality or any of its Subsidiaries and any Person (other than Parent). Notwithstanding anything to the contrary contained in this Agreement) , the Board of Directors of the Company may, directly or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 5.2, (DA) enter into, continue engage or otherwise participate in any discussions or negotiations regarding with any Company Person that has made (and not withdrawn) an Alternative Acquisition Proposal, or (E) agree to do any Proposal in writing that the Board of the foregoing; provided, however, if, prior to the receipt Directors of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines concludes in good faith, faith (after consultation with Pagemill Partners or another reputable financial advisor and the Company’s outside financial advisors and outside legal counsel, is ) constitutes or could reasonably be expected to lead to a Superior Proposal, and/or (B) furnish to any Person that has made (and not withdrawn) an Alternative Acquisition Proposal in writing that the Board of Directors of the Company concludes in good faith (after consultation with Pagemill Partners or another financial advisor of nationally recognized standing and the Company’s outside legal counsel) constitutes or could reasonably be expected to lead to a Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement containing limitations on the use and disclosure of confidential information furnished to such third party by the Company that are no less favorable to the Company than the provisions of the Confidentiality Agreement, provided that (in the case of any action proposed to be taken pursuant to the foregoing clauses (A) or (B)), (1) neither the Company nor any of its Subsidiaries shall have breached the terms of this Section 5.2, (2) the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that such action is required in order to comply with its fiduciary duties to the Company’s stockholders under applicable Legal Requirements, (3) prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company enters into a confidentiality agreement with gives Parent written notice of the Person making identity of such Company third party and of the Company’s intention to engage in negotiations with, or furnish confidential information to, such third party, and all of the material terms and conditions of such Alternative Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent unless such Alternative Acquisition Proposal is in written form, in which case the Company from complying with its obligation shall give Parent a copy thereof) and of the Company’s intention to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that engage or participate in the aggregate are no less restrictive on discussions or negotiations with, or furnish non-public information to, such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)Person, and (24) promptly (but in any event within 24 hours) following furnishing prior to providing any such nonpublic confidential information to such Personthird party, the Company furnishes makes available such nonpublic confidential information to Parent (to the extent such nonpublic confidential information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company available by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b5.2(b), the Company shall promptly, and in all cases within twenty four (24) hours of its receipt, notify Parent orally and in writing (whether or not the Company is a party to or otherwise bound by a confidentiality or other similar agreement that purports to prohibit the Company from disclosing any of the following information) of the following: (i) shall promptly any Alternative Acquisition Proposal; (and in ii) any event within 24 hoursrequest for information that the Company’s Board of Directors determines could reasonably be expected to lead to an Alternative Acquisition Proposal; or (iii) notify Parent in writing of any inquiries, proposals or offers inquiry with respect to a Company Acquisition Proposal that are received byto, or which the Company’s Board of Directors determines could reasonably be expected to lead to, any non-public information with regard to such Company Alternative Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal withProposal, the Company (terms and conditions of such Alternative Acquisition Proposal, request or any of its Representatives)inquiry, indicating, in connection with such notice, and the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiriesAlternative Acquisition Proposal, proposals request or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter inquiry. The Company shall keep Parent reasonably informed, on a reasonably prompt basis (andcurrent basis, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms details of any such inquiriesAlternative Acquisition Proposal, proposals request or offers (inquiry, including any material amendments thereto or any change proposed amendments as to price, closing conditions and other material terms thereof.
(d) In addition to the scope or material terms or conditions thereofforegoing, and including copies the Company shall give Parent prior written notice of any written inquiriesmeeting of the Board of Directors of the Company at which the Board of Directors of the Company is reasonably expected to consider an Alternative Acquisition Proposal, proposals an inquiry relating to a potential Alternative Acquisition Proposal, or offersa request to provide nonpublic information to any Person relating to a potential Alternative Acquisition Proposal, including proposed agreements and material modifications thereto)with Parent receiving a similar amount of notice of such meeting as is provided to members of the Board of Directors of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of hereof, except as specifically permitted in this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Section 6.3, the Company shall not, nor shall it authorize or permit any of its Subsidiaries or its or their Representatives to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, : (Ai) solicit, initiate initiate, knowingly facilitate or knowingly encourage any inquiries with respect to the submission or the announcement of any Acquisition Proposal; (including by way ii) participate in discussions or negotiations regarding or furnish any non-public information relating to the Company or any of furnishing information which has not been previously publicly disseminated)its Subsidiaries with respect to, or knowingly facilitate otherwise cooperate in any way with, any effort or attempt by any Person (other than Parent or its Affiliates) to make an inquiry in respect of or the making or submission of make any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal; (iii) except for confidentiality agreements entered into pursuant to the proviso set forth in clause (d)(iv)(A) of this Section 6.3, enter into a letter of intent, memorandum of understanding or other agreement with any Person, other than Parent or its Affiliates, relating to an Acquisition Proposal or (iv) waive any Standstill Agreement (as defined below) or voting restriction contained in the organizational or governing documents of the Company or any of its Subsidiaries. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.3, and any violation of the restrictions contained in this Section 6.3 by the Company’s Board of Directors (including any committee thereof) or any director, officer or employee of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.3 by the Company.
(b) The Company shall, and shall cause each of its Subsidiaries and instruct its Representatives to, (i) cease and terminate any existing solicitations, discussions, negotiations or other activity with any Person (other than Parent or its Affiliates) being conducted with respect to any Acquisition Proposal on the date hereof, (ii) promptly request that each Person (other than Parent or its Affiliates) that has received confidential information in connection with a possible Acquisition Proposal return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries and (iii) enforce, and cause to be enforced, any confidentiality, standstill or other agreement to which the Company is a party (such agreement, a “Standstill Agreement”).
(c) From and after the date hereof, the Company shall notify Parent as soon as practicable (but in any event within twenty-four (24) hours) after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries or (iii) any request for access to the properties, assets or the books and records of the Company or its Subsidiaries that the Company reasonably believes is reasonably likely to lead to an Acquisition Proposal. The Company shall provide Parent promptly with the identity of such Person, a description of such Acquisition Proposal, indication or request and, if applicable, a copy of such Acquisition Proposal, unless the Company is prohibited from such actions by the terms of any agreement between the Company and such Person. The Company shall keep Parent informed on a reasonably current basis of the status and the material details of any such Acquisition Proposal, indication or request and shall notify Parent as soon as practicable (but in any event within twenty-four (24) hours) of any material change in the terms of any such Acquisition Proposal, indication or request (including whether such Acquisition Proposal, indication or request has been withdrawn or rejected and of any material change to the terms thereof) and concurrently provide a copy of any document received from or on behalf of the Person making such Acquisition Proposal, indication or request relating to any such material development.
(d) Notwithstanding the foregoing provisions of this Section 6.3, prior to the Acceptance Date, after receiving an unsolicited, bona fide, third party proposal with respect to an Acquisition Proposal that is submitted to the Company by any Person (and not withdrawn), if none of the Company, any of its Subsidiaries nor any Representatives of the Company and any of its Subsidiaries have breached any of the provisions set forth in this Section 6.3 in any respect, nothing in this Agreement shall prevent the Company or its Board of Directors from (X) contacting such Person solely to clarify the terms and conditions thereof and (Y) engaging in discussions or negotiations with, or furnishing or disclosing any information relating to the Company or any of its Subsidiaries or giving access to the properties, assets or the books and records of the Company or any of its Subsidiaries with such Person if, in the case of clause (Y), (i) such Person is not a party to any Standstill Agreement with the Company or any of its Subsidiaries, (ii) the Board of Directors determines in good faith (after consultation with the Company’s legal and financial advisors) that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal and (after consultation with the Company’s legal advisor) that the failure to take such action would reasonably be expected to result in a breach of the directors’ fiduciary duties to the stockholders of the Company under applicable Laws, and (iii) the Company (A) enters into a confidentiality agreement at least as restrictive as the Confidentiality Agreement and provides a copy of such agreement to Parent and (B) subject concurrently discloses or makes available the same information to Parent as it makes available to such Person.
(e) The Board of Directors of the Company shall not (i) except as set forth in this Section 5.02(b)6.3, approve withdraw or modify or change, or publicly propose to withdraw or modify or change, in a manner adverse to Parent and Merger Subsidiary, its recommendation of the Offer, the Merger or this Agreement or (ii) except in accordance with this Section 6.3, approve, endorse or recommend, or publicly propose to approve approve, endorse or recommend, a any Acquisition Proposal or cause the Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement in principle or other agreement, arrangement or understanding, in each case relating agreement with respect to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”confidentiality agreement permitted by Section 6.3(d)(iv)(A), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of ). Notwithstanding the foregoing; provided, however, if, at any time prior to the receipt Acceptance Date, the Board of Directors of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, faith (after consultation with the Company’s outside legal and financial advisors and outside legal counseladvisors) that an Acquisition Proposal constitutes a Superior Proposal, is or could reasonably be expected that any material event or circumstance relating to lead to a the business prospects of the Company Superior Proposal and that was not solicited in violation known by the Board of this Section 5.02(a) made after Directors of the Company as of the date of this Agreementhereof (or if known, the consequences of which are not known or reasonably foreseeable by the Board of Directors of the Company mayas of the date hereof) and not relating to any Acquisition Proposal (such material event or circumstance, or consequences thereof, an “Intervening Event”) has occurred, the Board of Directors of the Company may withdraw or modify its recommendation of the Offer, the Merger or the Agreement in response to such Company Acquisition Proposal, the Superior Proposal or Intervening Event and subject to compliance terminate this Agreement in accordance with Section 5.02(b8.1(c)(ii), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change only if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation the Company’s Board of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes Directors determines in good faith, faith (after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIadvisors) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make take such action would reasonably be expected to result in a Company Adverse Recommendation Change would be inconsistent with the breach of its fiduciary duties to the stockholders of the Company Board under applicable Law; providedLaws, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail Board of Directors of the Company Intervening Event;
provides Parent with at least four (ii4) Business Days’ advance written notice (provided however, that during the five (5) days following Business Days prior to the initial Expiration Date, the period for notice shall be reduced to two (2) Business Days) of its intention to make a change in recommendation and specifying the material events giving rise thereto, and (C) during such written notice described in four (4) Business Day period (or, where applicable, a two (2) Business Day period, the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below“Notice Period”), the Company Board and its Representatives have negotiated shall, if requested by Parent, negotiate in good faith with Parent and its Representatives to amend this Agreement so as to enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (to the extent Parent desires to negotiate) regarding after taking into account any revisions agreed modifications to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iiiAgreement) and at the end of such Notice Period (it being understood and agreed that any amendment to the financial terms or any other material term of such Acquisition Proposal shall require a new Notice Period of at least three (3) Business Days (or, during the five (5) day period described in Business Days prior to the foregoing clause initial Expiration Date, one (i1) (or such shorter period as specified in this Section 5.02(b) belowBusiness Days), the Board of Directors of the Company Board concludes in good faith, maintains its determination (after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of agreed modifications to the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable Agreement).
(f) Notwithstanding the foregoing, the Board of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties Directors of the Company Board under applicable Law. Any amendment or modification shall be permitted to disclose to the conditionality, price or form stockholders of consideration of any the Company Superior Proposal will be deemed a position with respect to be a new Company an Acquisition Proposal for purposes required by Rule 14e-2(a), Item 1012(a) of this Section 5.02, and Regulation M-A or Rule 14d-9 promulgated under the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretoExchange Act; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later Board of three (3) days after the Company Board provides written notice Directors of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into first provide Parent the notice and opportunity to negotiate an Alternative Company Acquisition Agreement with respect thereto by terminating amendment to this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth manner provided in Section 5.02(a6.3(e)(B) and Section 5.02(b), the Company (i6.3(e)(C) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)above.
Appears in 2 contracts
Sources: Merger Agreement (Wabash National Corp /De), Merger Agreement (Supreme Industries Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Section 6.01 (and the payments, if any, required to be made in connection with such termination pursuant to Section 6.03(a) have been made) or the Effective Time, and except as set forth in Section 4.02(b), Company shall not, nor and shall it not permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons its and its Subsidiaries' officers, directors, employees, consultants, representatives and other agents, including, but not limited to, investment bankers, attorneys and accountants (collectively, the "Representatives"), not to), directly or indirectly, (Ai) solicit, initiate initiate, or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)encourage, or knowingly induce, or take any action to facilitate any inquiry or the making or submission of of, any inquiry, proposal, indication of interest offer or offer which proposal that constitutes, or would may reasonably be expected to lead to, a Company any Acquisition Proposal, or (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal or, in connection with any Acquisition Proposal, furnish or provide access to any Person (other than Parent and Acquisition Sub and their Representatives) to properties, books and records or any nonpublic information or data with respect to Company or any of its Subsidiaries, or (iii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (Eiv) agree enter into any agreement, understanding, letter of intent or similar document contemplating or otherwise relating to do any Acquisition Proposal (except for any confidentiality agreement required by Section 4.02(b)(i)) or approve or resolve to approve any Acquisition Proposal, or (v) take any action to make the provisions of the Rights Agreement or any "fair price," "moratorium," "control share acquisition," "business combination" or other similar anti-takeover statute or regulation or any restrictive provision of any applicable anti-takeover provision in Company's Certificate of Incorporation or By-Laws inapplicable to any specific transactions contemplated by an Acquisition Proposal.
(b) Notwithstanding the foregoing; provided, howeverthis Section 4.02 shall not prohibit Company or the Representatives from:
(i) participating in any discussions or negotiations regarding any Acquisition Proposal or responding to an unsolicited, if, bona fide and written Acquisition Proposal that is submitted to Company by any Person (including any Person with whom Company was in discussions regarding a potential Acquisition Proposal prior to the receipt date of this Agreement) after the date of this Agreement or, in connection with any such Acquisition Proposal, furnishing or providing access to any such Person to properties, books and records or any nonpublic information or data with respect to Company Stockholder Approval, following or any of its Subsidiaries or Affiliates if and only if (A) the receipt Board of a bona fide written Company Acquisition Proposal that the Company Board Directors determines in good faith, after consultation with the Company’s outside financial advisors and its outside legal counselcounsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), (x) that such Person is reasonably capable of consummating such Acquisition Proposal taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and (y) that such Acquisition Proposal will result in, or could reasonably be expected to lead to constitute or result in, a Company Superior Proposal and from the party that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company applicable Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on or such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposalparty's Affiliates), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case Board of a Company Acquisition Proposal, the Company Board concludes Directors determines in good faith, after consultation with the Company’s outside financial advisors and its outside legal counselcounsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that the taking of such action may be reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law, and (C) within one Business Day following the determinations by the Board of Directors referred to in clauses (A) and (B) above Company gives Parent written notice of such determinations, and (D) in each such case, the Board of Directors has received from the Person being furnished or disclosed any nonpublic information, an executed confidentiality agreement on terms substantially similar and not less restrictive than the Confidentiality Agreement; or
(ii) approving or recommending, or entering into, a definitive agreement with respect to an unsolicited, bona fide and written Acquisition Proposal constitutes a that is submitted to Company Superior Proposal; after the date of this Agreement if and (III) only if the Company Board concludes of Directors determines in good faith, after consultation with the Company’s its outside legal counselcounsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that such proposal is a Superior Proposal and that the failure termination of this Agreement to make a accept such Superior Proposal or the recommendation of such Superior Proposal to the shareholders of Company Adverse Recommendation Change would be inconsistent is reasonably necessary in order for the Board of Directors to comply with the its fiduciary duties of the Company Board to Company's shareholders under applicable Law; provided, however, none that Company shall not have the right to take any such action or to terminate this Agreement pursuant to Section 6.01(d)(ii) of this Agreement and the Board of Directors shall not recommend a Superior Proposal to Company's shareholders pursuant to this Section 4.02, the unless prior to any such termination: (1) Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides has provided Parent at least five (5) days’ prior with written notice that it intends to terminate this Agreement pursuant to Section 6.01(d)(ii) of its intention to this Agreement and take such action with respect to a Superior Proposal, such notice to specify in reasonable detail the material terms and conditions of the Superior Proposal then determined to be more favorable, the parties thereto, and shall be accompanied by a copy of the proposed acquisition agreement for such Superior Proposal and any ancillary agreements each in substantially the form to be entered into, such notice and documents to be delivered not less than two full Business Days prior to the time the action is to be taken; (it being understood that 2) during the two full Business Days period following the delivery of such the notice and any amendment or update thereto and referred to in clause (1) above (the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change"Negotiation Period"), which notice Parent shall include, as applicable, (A) have the information with respect right to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described propose adjustments in the foregoing clause (i) (or such shorter period as is specified in terms and conditions of this Section 5.02(b) below), the Agreement and Company Board and its Representatives have negotiated advisors shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to concerning adjustments in the terms and conditions of this Agreement such that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Acquisition Proposal would no longer constitute a Superior Proposal or Company Intervening Event, as applicableProposal; and
(iii3) at following the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)Negotiation Period, the Company Board concludes of Directors determines in good faith, after consultation with the Company’s its outside legal counsel and a nationally recognized financial advisors advisor (which may be Company's Financial Advisor), that such third party proposal is a Superior Proposal and taking into account any adjustment or modification of that the terms termination of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company accept such Superior Proposal or (B) and/or the recommendation of such Superior Proposal to the shareholders of Company Intervening Event continues is reasonably necessary in order for the Board of Directors to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent comply with the its fiduciary duties of the Company Board to Company's shareholders under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, ; and the Company shall promptly (but in any event within 24 hours of occurrence4) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Negotiation Period, Company Board provides delivers to Parent written notice of such new Company Acquisition Proposal to Parent and the end termination of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with pursuant to Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h6.01(d)(ii).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
No Solicitation. (a) The Company shallNorthfield agrees that it will not, shall and will cause each of its Subsidiaries not to, and will use its reasonable best efforts to cause its Subsidiaries to and shall request that its their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not to, immediately cease directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any communications, discussions inquiries or negotiations with any Person that may be ongoing proposals with respect to a Company any Acquisition Proposal, (ii) furnishing to engage or participate in any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) negotiations with any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed person concerning any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (Biii) subject to Section 5.02(b), approve provide any confidential or recommendnonpublic information or data to, or publicly propose to approve have or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise 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 Northfield, is making any inquiries with respect to, or negotiations regarding any Company is considering making, an Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt existence of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further6.12(a)), (xiv) whether grant any waiver, amendment or not there is a Company Adverse Recommendation Changerelease of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract), or (v) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 9.016.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the Company Board shall submit event that after the date of this Agreement for approval by and prior to the Company stockholders receipt of the Requisite Northfield Vote, Northfield receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.12(a), Northfield may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Northfield Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, Northfield shall have provided such information to the Columbia Parties and entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Northfield or otherwise prevent Northfield from providing any information to the Columbia Parties in accordance with this Agreement or otherwise comply with its obligations under this Agreement, and provided the Columbia Parties with at least three (3) business days prior notice of taking any such action. Northfield will, and will cause its Representatives to, (x) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the Company Stockholders Meeting; date of this Agreement with any person other than the Columbia Parties with respect to any Acquisition Proposal and (y) in request the event there is a Company Adverse Recommendation Change prompt return or destruction of all confidential information previously furnished to any person (other than the Columbia Parties and their Representatives) that has made in compliance with this Section 5.02(bor indicated an intention to make an Acquisition Proposal. Northfield will promptly (within twenty-four (24) with respect hours) advise the Columbia Parties following receipt of any Acquisition Proposal or any request for nonpublic information or any other inquiry which could reasonably be expected to a Company Superior lead to an Acquisition Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) substance thereof (including the terms and Section 5.02(bconditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the Company (i) shall Columbia Parties with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the Columbia Parties apprised promptly (and in any event within 24 twenty-four (24) hours) notify Parent in writing of any inquiriesrelated developments, proposals discussions and negotiations on a current basis, including any amendments to or offers with respect revisions of the terms of such inquiry or Acquisition Proposal. Northfield shall use its reasonable best efforts to a Company Acquisition Proposal that are received by, enforce any existing confidentiality or any non-public information with regard standstill agreements to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (which it or any of its Representatives)Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, indicating“Acquisition Proposal” shall mean, in connection with such noticerespect to Northfield, other than the identity of the Person or group of Persons making the inquirytransactions contemplated by this Agreement, any offer, proposal or offer 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 consolidated assets of Northfield and the material terms and conditions its Subsidiaries or twenty-five percent (25%) or more of any such inquiriesclass of equity or voting securities of Northfield or its Subsidiaries whose assets, proposals individually or offers in the aggregate, constitute twenty-five percent (and providing copies 25%) or more of all related written inquiriesthe consolidated assets of Northfield, proposals or offers, including proposed agreements) and (ii) thereafter any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Northfield or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Northfield, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, twenty-five percent (25%) or more of any class of equity or voting securities of Northfield or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Northfield.
(b) Nothing contained in this Agreement shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hoursprevent Northfield or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of the status of any material discussions or negotiations Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to Northfield’s stockholders; provided, that such inquiriesrules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.
(c) Without limiting the foregoing, proposal it is agreed that any violation of the restrictions set forth in this Section 6.12 by any Subsidiary or offers and the details Representative of any material changes to the status and material terms Northfield shall constitute a breach of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Section 6.12 by Northfield.
Appears in 2 contracts
Sources: Merger Agreement (Columbia Financial, Inc.), Merger Agreement (Northfield Bancorp, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Neither Brainworks, the Company nor the LLC shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate and shall not authorize or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do permit any of the foregoing; provided, however, if, prior to other Brainworks Corporations (in the receipt case of Brainworks) or the AAHoldings Entities (in the case of the Company Stockholder Approvaland the LLC) to, following (i) directly or indirectly solicit, initiate, encourage, induce or facilitate the receipt making, submission or announcement of a bona fide written Company any Acquisition Proposal or take any action that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited an Acquisition Proposal, (ii) furnish any information regarding any of the Brainworks Corporations (in violation the case of this Section 5.02(aBrainworks) made after or the date AAHoldings Entities (in the case of this Agreement, the Company may, and the LLC) to any Person in connection with or in response to such Company an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and (iii) engage in discussions or negotiations with such any Person regarding such Company with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction (other than the transactions contemplated by this Agreement); provided, however, that this Section 4.4(a) shall not prohibit Brainworks from furnishing nonpublic information regarding the Brainworks Corporations to, or entering into discussions with, any Person in response to a Superior Proposal that is submitted to Brainworks by such Person (and not withdrawn) if (1) neither Brainworks nor any Representative of any of the Brainworks Corporations shall have violated any of the restrictions set forth in this Section 4.4, (2) the board of directors of Brainworks concludes in good faith, after having taken into account the written advice of its outside legal counsel, that such action is required in order for the board of directors of Brainworks to comply with its fiduciary obligations to Brainworks' stockholders under applicable law, (3) at least two business days prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions with, such Person, Brainworks gives the Company enters LLC written notice of the identity of such Person and of Brainworks' intention to furnish nonpublic information to, or enter into a discussions with, such Person, and Brainworks receives from such Person an executed confidentiality agreement with containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 by or on behalf of Brainworks and (y) contains containing "standstill" provisions that in the aggregate are no less restrictive on such Person favorable to Brainworks than those the "standstill" provisions contained in that certain letter agreement dated July 2, 2002, between the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)LLC and Brainworks, and (24) promptly (but in any event within 24 hours) following at least two business days prior to furnishing any such nonpublic information to such Person, the Company Brainworks furnishes such nonpublic information to Parent the LLC (to the extent such nonpublic information has not been previously so furnished by Brainworks to Parent the LLC). Without limiting the generality of the foregoing, Brainworks, the LLC and the Company each acknowledge and agree that any violation of or its Representativesthe taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative of any of the Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC), whether or not such Representative is purporting to act on behalf of any of such Entities, shall be deemed to constitute a breach of this Section 4.4 by Brainworks, the Company, or the LLC, as applicable.
(b) Notwithstanding anything to the contrary Brainworks shall promptly (and in this Agreement, prior to the no event later than 24 hours after receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise the LLC and the Company Board concludes orally and in good faithwriting of any Acquisition Proposal, after consultation with the Company’s outside financial advisors and outside legal counsel, any inquiry or indication of interest that such Company could lead to an Acquisition Proposal constitutes a Company Superior or any request for nonpublic information relating to any of the Brainworks Corporations (including the identity of the Person making or submitting such Acquisition Proposal; , inquiry, indication of interest or request, and (IIIthe terms thereof) that is made or submitted by any Person during the Pre-Closing Period. Brainworks shall keep the LLC and the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information fully informed with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent status of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)inquiry, indication of interest or request and any modification or proposed modification thereto.
(c) In addition to the obligations of Parent Brainworks and the Company set forth in Section 5.02(aLLC shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal.
(d) Each of Brainworks and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing LLC agrees not to release or permit the release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or to waive or permit the waiver of any discussions provision of, any confidentiality, "standstill" or negotiations are sought similar agreement to which any of the Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case to the LLC) is a party, and will use its best efforts to enforce or cause to be initiated regarding enforced each such Company Acquisition Proposal with, agreement at the Company (request of Brainworks or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)LLC.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
No Solicitation. (a) The Company shallPrior to the Expiration Date, each Stockholder (in its capacity as a stockholder of the Company) shall not, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any each of its Subsidiaries controlled Affiliates not to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause each person that controls such Persons Stockholder (each, a “Representative”) not to), directly or indirectly, (Ai) solicit, initiate or initiate, knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries regarding, or the making or submission of any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would could reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to, or furnish to any other person any information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 2.1 and/or Section 5.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), or (iii) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Superior Takeover Proposal; provided that nothing herein shall prohibit any Stockholder or any of its controlled Affiliates or Representatives from participating in any discussions or negotiations with respect to a possible stockholders’ consent or voting agreement in connection with a Company Takeover Proposal and in the event that was not solicited the Company becomes permitted to taken the actions set forth in violation clause (A) or clause (B) of Section 5.3(c) of the Merger Agreement with respect to such Company Takeover Proposal.
(b) For purposes of this Section 5.02(a) made after Agreement, the date term “Affiliate” shall have the meaning assigned to it in the Merger Agreement, but shall not include any entity whose equity securities are registered under the Exchange Act (or are publicly traded in a foreign jurisdiction), solely by reason of the fact that one or more nominees or representatives of any of the Stockholders serves as a member of its board of directors or similar governing body, unless the Stockholders or their Affiliates otherwise control such entity. For purposes of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does shall not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent an Affiliate of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Stockholders.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Trian Fund Management, L.P.)
No Solicitation. (a) The Company shall, Founders shall cause its Subsidiaries to and shall request that its Representatives, immediately cease not (i) ---------------- directly or indirectly, solicit, initiate or encourage the submission of, any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition ICI Takeover Proposal, (ii) furnishing enter into any agreement with respect to any ICI Takeover Proposal or (iii) directly or indirectly, participate in any discussions or negotiations regarding, or furnish to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating into, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request take any other action to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would may reasonably be expected to lead to, any ICI Takeover Proposal.
(b) The Founders shall not (i) withdraw or modify, or propose to withdraw or modify, in a Company Acquisition Proposalmanner adverse to IHS, the approval or recommendation by ICI of the Ancillary Agreements to which ICI is a party, (Bii) subject approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Section 5.02(b), any ICI Takeover Proposal or (iii) approve or recommend, or publicly propose to approve or recommend, a Company Acquisition any ICI Takeover Proposal.
(c) The Founders shall, (C) subject to Section 5.02(b)within five business days after receipt thereof, approve advise IHS orally and in writing of any ICI Takeover Proposal or recommendany inquiry with respect to, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreementto, the Company may, in response to such Company Acquisition any ICI Takeover Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals ICI Takeover Proposal or offers inquiry (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes change to the status and material terms of any such inquiries, proposals ICI Takeover Proposal or offers inquiry). The Founders shall (i) keep IHS fully informed of the status (including any material amendments thereto or any change to the scope details) of any such ICI Takeover Proposal or material terms inquiry and (ii) provide to IHS as soon as practicable after receipt or conditions thereof, and including delivery thereof with copies of all correspondence and other written material sent or provided to the Founders or ICI from any written inquiriesthird party in connection with any ICI Takeover Proposal or sent or provided by the Founders or ICI to any third party in connection with any ICI Takeover Proposal.
(d) Notwithstanding any other provision of this Agreement, proposals or offersit is understood and agreed that any remedies at law would be inadequate in the case of any breach of the covenants contained in Section 5.02. IHS shall be entitled to equitable relief, including proposed agreements and material modifications thereto)the remedy of specific performance, with respect to any breach or attempted breach of the covenants contained in Section 5.02.
Appears in 2 contracts
Sources: Formation Agreement (International Computex Inc), Formation Agreement (Galvin Michael Jeffrey)
No Solicitation. (a) The Company shallshall not, and shall cause its Subsidiaries to not to, and shall request that not authorize or permit its Representativesand its Subsidiaries’ directors, immediately cease officers, employees, advisors and investment bankers (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Person, the Company shall not, nor shall it permit any of its Subsidiaries foregoing Persons are referred to herein as such Person’s “Representatives”) to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate initiate, or knowingly encourage (including by way the submission of furnishing information which has not been previously publicly disseminated)any inquiries, or knowingly facilitate any inquiry or the making or submission of any inquiryproposal or offer, proposal, indication of interest that constitutes a Takeover Proposal or offer which constitutes, or would that could reasonably be expected to lead to, a Company Acquisition to any Takeover Proposal, (B) or, subject to Section 5.02(b6.04(b), (i) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any Person relating to the Company or any of its Subsidiaries, or afford to any Person access to the business, properties, assets, books or records or personnel of the Company or any of its Subsidiaries (except to notify such Person of the existence of the provisions of this Section 6.04), (ii) approve or recommend, or publicly propose to approve or recommend, a Company Acquisition any Takeover Proposal, (Ciii) subject to Section 5.02(b)grant any waiver, approve amendment or recommendrelease under any standstill or confidentiality agreement, or publicly propose to approve or recommend, or execute or (iv) enter into any agreement in principle, letter of intent, memorandum of understandingterm sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement, arrangement or understanding, in each case similar definitive agreement relating to a Company Acquisition any Takeover Proposal (other than an Acceptable Company Confidentiality Agreement) or each, a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”). Except as set forth in Section 6.04(b), (D) enter intoneither the Company Board nor any committee thereof shall withdraw, continue amend, modify or otherwise participate materially qualify in any discussions a manner adverse to Parent or negotiations regarding any Merger Sub, or fail to make the Company Acquisition Board Recommendation, or recommend a Takeover Proposal, or (E) make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to do take any of the foregoing actions (any of the foregoing; provided, howevera “Company Adverse Recommendation Change”). The Company shall, ifand shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal until such time, if any, as this Agreement is terminated in accordance with its terms.
(b) Notwithstanding anything to the contrary contained in this Agreement, prior to the Offer Closing, the Company Board, directly or indirectly through any Representative, may if neither the Company nor its Subsidiaries, nor their respective Representatives, are in breach of this Section 6.04, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or is reasonably expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement, (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate this Agreement in accordance with the terms of Section 8.04(a), and/or (v) take any action that any court of competent jurisdiction orders the Company Stockholder Approvalto take (which order remains unstayed), following but in each case referred to in the receipt of a bona fide written Company Acquisition Proposal that foregoing clauses (i) through (v), only if the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Notwithstanding the foregoing provisions of this Section 6.04(b), the Company Board may, at any time, so long as it is not in breach of this Section 6.04, withdraw, modify or amend the Company Board Recommendation and terminate this Agreement if the Company Board determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law, provided, however, that any disclosure other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express rejection of any applicable Takeover Proposal, or (C) an express reaffirmation of its recommendation to its stockholders in favor of the Offer and the Merger shall be deemed to be a Company Adverse Recommendation Change; provided, that any disclosure made by the Company other than as set forth in (A) through (C) above shall not be a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of if after such disclosure the Company Board under applicable Law; provided, however, none of the Company, expressly publicly reaffirms the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is Business Days following a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)request from Parent.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Randstad North America, L.P.), Merger Agreement (SFN Group Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of such time, if any, as Bluegreen’s shareholders approve this Agreement in accordance with ARTICLE 9the MBCA, subject to Section 7.3(b), without the Company shall prior written consent of Woodbridge, Bluegreen will not, nor shall it and will not permit any of its Subsidiaries directors, officers, employees, investment bankers, attorneys, accountants or other Representatives, agents or Affiliates to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), any Acquisition Proposals or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal proposals that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior any Acquisition Proposals, (ii) engage in negotiations or discussions concerning, or provide any non-public information to any Person in connection with, any Acquisition Proposal and or under circumstances that was not solicited could reasonably be expected to result in violation of this Section 5.02(aan Acquisition Proposal or (iii) made after the date of this Agreementagree to, approve, recommend or otherwise endorse or support any Acquisition Proposal. As used herein, the Company may, in response to such Company term “Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, ” shall mean any such nonpublic information proposal relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) possible (A) a written Company Acquisition Proposal that was not solicited in violation merger, consolidation, share exchange, business combination or similar transaction involving Bluegreen or any of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or its Subsidiaries, (B) there has been a Company Intervening Event; sale, lease, exchange, transfer or other disposition (II) other than sales of inventory in the case ordinary course of a Company Acquisition Proposalbusiness consistent with past practices), the Company Board concludes directly or indirectly, by merger, consolidation, share exchange or otherwise (whether in good faithone or more transactions), after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of all or substantially all of the Company Board under applicable Law; providedassets of Bluegreen and its Subsidiaries on a consolidated basis, however(C) liquidation, none dissolution, recapitalization or other similar type of transaction involving Bluegreen or any of its Subsidiaries, (D) tender offer or exchange offer for ten percent (10%) or more of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice outstanding shares of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition AgreementBluegreen Common Stock, or other transaction involving Bluegreen in which any Person or group shall acquire or have the right to acquire beneficial ownership of ten percent (B10%) the facts and circumstances in reasonable detail or more of the Company Intervening Event;
outstanding shares of Bluegreen Common Stock or (iiE) during the five (5) days following such written notice described transaction which is similar in form, substance or purpose to any of the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretotransactions; provided, however, that the term “matching periodAcquisition Proposal” set forth above shall in such circumstance expire on not include the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent Merger and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether transactions contemplated hereby or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect related thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any modification thereof or proposal relating thereto). Bluegreen will, and will direct all of its directors, officers, employees, investment bankers, attorneys, accountants and other Representatives), indicatingagents and Affiliates to, in connection with such noticeimmediately cease any and all existing activities, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with any parties conducted heretofore with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (BFC Financial Corp), Merger Agreement (Bluegreen Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time Closing or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article VII, but subject to Section 5.6, except for an amendment to its Schedule 13D to be filed by the Trustee disclosing the execution of this Agreement, the Company Trustee shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, take (Aand the Trustee will not authorize or give permission to any Representative of the Trustee or either Trust to take, on behalf of the Trustee or either Trust, or permit either Trust or any officer, director or employee of the Trustee to take) any action to (a) act, whether alone or with others, to propose or seek to propose (other than a confidential proposal to the Company) any Alternative Trust Proposal or Company Takeover Proposal, (b) solicit, initiate initiate, knowingly encourage or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)facilitate, or negotiate with any person(s) with respect to any Alternative Trust Proposal or Company Takeover Proposal, (c) enter into any agreement, commitment, letter of intent or understanding (i) with respect to any Alternative Trust Proposal or Company Takeover Proposal or (ii) requiring the Trustee or either Trust to abandon, terminate or fail to consummate the Reclassification or to breach any of its covenants or agreements contained in this Agreement or the Trust Proxy or (d) other than informing persons of the provisions contained in this Section 5.5, participate in any discussions or negotiations with, or furnish any information to, any other person(s) in connection with, or take any other action that is reasonably likely to knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would could reasonably be expected to lead to, a any Alternative Trust Proposal or Company Acquisition Takeover Proposal. Upon the execution of this Agreement, (Bthe Trustee shall, and shall cause all Representatives of the Trustee who are officers, directors or employees of the Trustee or that were or are engaged in connection with the negotiation or execution of this Agreement or otherwise advised or are advising the Trustee in connection the Reclassification, alternatives thereto, the Company or the interests of the Trusts therein to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any person(s) subject to Section 5.02(b), approve or recommendconducted heretofore with respect to, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnishedto, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Trust Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable LawTakeover Proposal. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for For purposes of this Section 5.025.5, and the defined term “Company Takeover Proposal” shall promptly (but in be interpreted to disregard any event within 24 hours references to “all or substantially all” or any percentage threshold amounts set forth therein, which references shall instead be interpreted as “any.” For the avoidance of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of doubt, this Section 5.02(b) with respect thereto; provided, however, that 5.5 shall not limit the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end rights of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Trustee pursuant to Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; 5.7 and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h7.1(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Reclassification Agreement (BESSEMER TRUST Co NATIONAL ASSOCIATION), Reclassification Agreement (Hubbell Inc)
No Solicitation. (a) The Company shallSubject to Section 5.4(b), shall cause its Subsidiaries to Section 5.4(d), Section 5.4(e) and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Section 5.4(g), the Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor shall it authorize or knowingly permit any of its and their respective Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly: (i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or providing non-public information) the making or submission of any inquiryinquiries, proposal, indication of interest proposals or offer which constitutes, offers that constitute or would may reasonably be expected to lead to, a any Company Acquisition ProposalProposal or engage in any discussions or negotiations with respect thereto (except to disclose the existence of the provisions of this Section 5.4) or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, offers, proposals, discussions or negotiations, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition ProposalProposal or enter into any merger agreement, (C) subject letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute a Company Acquisition Proposal or enter into any letter of intent, memorandum of understanding, merger agreement or other agreementagreement in principle requiring the Company (whether or not subject to conditions) to abandon, arrangement terminate or understandingfail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in each case relating a manner adverse to Parent, the Company Board Recommendation (individually or collectively a “Company Acquisition Proposal Adverse Recommendation Change”), or (iv) take any action to exempt any Person (other than an Acceptable Company Confidentiality AgreementParent and its Subsidiaries) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue from the restrictions contained in any Takeover Law or otherwise participate in cause such restrictions not to apply. The Company shall immediately cease and cause to be terminated any discussions solicitation, encouragement, discussion or negotiations regarding negotiation with any Persons conducted theretofore by the Acquired Companies or any of its Representatives with respect to any Company Acquisition Proposal, . The Company shall promptly cause to be returned or (E) agree to do any destroyed all confidential information provided by or on behalf of the foregoing; providedAcquired Companies to any such Person.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), however, if, if at any time following the date of this Agreement and prior to obtaining the receipt of Required Company Vote, (i) the Company Stockholder Approvalhas received a written, following the receipt of a bona fide written Company Acquisition Proposal from a Third Party that is not in violation of such Third Party’s contractual obligations to the Company, (ii) such Company Acquisition Proposal did not result from a breach or violation by the Company of Section 5.4(a), (iii) the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes or is or could reasonably be expected likely to lead to a Company Superior Proposal Proposal, and that was not solicited in violation of this Section 5.02(a(iv) made after consultation with the date of this AgreementCompany’s outside counsel, the Company Board determines in good faith that the failure to take such action could reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company and its Representatives may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b)clauses (x) and (y) below, (A) furnish information with respect to the Company Acquired Companies to the Person making such Company Acquisition Proposal (and engage its Representatives), and (B) participate in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable and its Representatives) regarding such Company Confidentiality Agreement”) Acquisition Proposal; provided that (x) does not contain any provision that would prevent the Company from complying will not, and will cause its Representatives not to, disclose any non-public information to such Person unless the Company has, or first enters into, a customary confidentiality agreement with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are such Person with terms no less restrictive on such Person favorable in all material respects to the Company than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement and (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibity) the making of any Company Acquisition Proposal), and (2) will promptly (but and in any event within 24 hours) following furnishing provide or make available to Parent or its Representatives any such nonpublic non-public information concerning the Acquired Companies provided or made available to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has other Person which was not been previously so furnished provided or made available to Parent or its Representatives).
(bc) Notwithstanding anything to From and after the contrary in this Agreement, prior to the receipt of the Company Stockholder Approvaldate hereof, the Company Board may effect a Company Adverse Recommendation Change if shall promptly (and only if): in any event within 48 hours) notify Parent in the event that the Company (Iincluding through any of its Subsidiaries or Representatives) receives (Ai) a written any Company Acquisition Proposal that was not solicited in violation of Section 5.02(aProposal, (ii) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn any request for non-public information which relates to, or (B) there has been a Company Intervening Event; (II) in the case of could reasonably likely lead to, a Company Acquisition Proposal, the or (iii) any request for discussions or negotiations regarding any Company Board concludes Acquisition Proposal. The Company shall provide Parent promptly (and in good faith, after consultation any event within such 48 hour period) with the Company’s outside financial advisors identity of such Person and outside legal counsel, that a copy of such Company Acquisition Proposal constitutes or request (or, where such Company Acquisition Proposal or request is not in writing, a description of the material terms and conditions thereof). The Company Superior Proposal; shall keep Parent reasonably informed (orally or in writing) on a current basis (and in any event no later than 48 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal or request (including the material terms and conditions thereof and of any material modification thereto). The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the date of this Agreement that would restrict Company’s ability to provide such information to Parent.
(d) Notwithstanding anything in Section 5.4(a) to the contrary, if (i) Company receives a written, bona fide Company Acquisition Proposal from a Third Party that is not in violation of such Third Party’s contractual obligations to Company, (ii) such Company Acquisition Proposal did not result from a breach or violation by the Company of Section 5.4(a), and (IIIiii) the Company Board concludes in good faith, after consultation with the Company’s outside legal counselcounsel and financial advisors, that the failure after giving effect to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties all of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions adjustments to the terms of this Agreement that may, at Parent’s sole discretion, which may be proposed offered by Parent in response pursuant to clause (B) below, that such Company Acquisition Proposal constitutes a Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)Proposal, the Company Board concludes may at any time prior to obtaining the Required Company Vote, if it determines in good faith, after consultation with the Company’s outside legal counsel counsel, that the failure to take such action could reasonably be expected to be a breach of its fiduciary duties to the stockholders of Company under applicable Law, (1) effect a Company Adverse Recommendation Change and/or (2) terminate this Agreement pursuant to Section 7.1(h) and financial advisors this Section 5.4(d), it being understood that such termination shall not be effective unless, concurrently with such termination, Company enters into a written definitive agreement for such Company Superior Proposal and Company pays to Parent the Company Termination Fee required to be paid under Section 7.3(c); provided, however, that the Company Board may not effect such a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(h) and this Section 5.4(d) unless (A) Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Company Notice Period”), of its intention to take such action with respect to such Company Superior Proposal, which notice shall specify the material terms and taking into account conditions of any adjustment or modification such Company Superior Proposal (including the identity of the Third Party making such Company Superior Proposal) and, in the case of a proposed termination pursuant to Section 7.1(h), shall include a copy of the proposed definitive agreement to be entered into concurrently with and as a condition to such termination, (B) prior to taking such action, the Company shall, and shall direct its financial and legal advisors to, during such Company Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement proposed so that such Company Acquisition Proposal ceases to constitute a Company Superior Proposal, and irrevocably committed to (C) following any negotiation described in writing by Parent and capable of acceptance by the immediately preceding clause (B), the Company Board determines in good faith, after consultation with the Company)’s financial advisors and outside counsel, that, as applicable (A) the that such Company Acquisition Proposal continues to be constitute a Company Superior Proposal. In the event of any revisions to the terms of a Company Superior Proposal or (B) that are material to such Company Superior Proposal after the start of the Company Intervening Event continues Notice Period, the Company shall be required to warrant deliver a new written notice to Parent satisfying the requirements of clause (A) of the preceding sentence and to comply with the requirements of this Section 5.4(d) with respect to such new written notice, and the Company Notice Period shall be deemed to have re-commenced on the date of such new notice.
(e) Notwithstanding anything in Section 5.4(a) to the contrary, at any time prior to obtaining the Required Company Vote, the Company Board may effect a Company Adverse Recommendation Change andChange, if the Company Board (i) determines in each casegood faith, after consultation with the Company’s outside counsel, that the failure to make such Company Adverse Recommendation Change would could reasonably be inconsistent with the expected to be a breach of its fiduciary duties to the stockholders of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and (ii) determines in good faith that the reasons for making such Company shall promptly (but in any event within 24 hours Adverse Recommendation Change are the result of occurrence) notify Parent of any such new a Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretoIntervening Event; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides may not effect such a Company Adverse Recommendation Change pursuant to this Section 5.4(e) unless (A) Company shall have provided prior written notice to Parent, at least three Business Days in advance, of its intention to make such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01which notice shall specify the material facts and information constituting the basis for such contemplated determination, and (B) prior to effecting such Company Adverse Recommendation Change, the Company Board shall, and shall submit direct its financial and legal advisors to, during such three Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement for approval which would allow the Company Board not to make such Company Adverse Recommendation Change consistent with its fiduciary duties.
(f) The Company agrees that any violations of the restrictions set forth in this Section 5.4 by any of its or its Subsidiaries’ Representatives, including any violation by such a Representative of a direction given to such Representative pursuant to the first sentence of Section 5.4(a) shall be deemed to be a breach of this Agreement (including this Section 5.4) by the Company stockholders at Company.
(g) Nothing contained in this Section 5.4 shall prohibit the Company Stockholders Meeting; Board from (x) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or (y) making any required disclosure to Company’s stockholders if in the event there is good faith judgment of the Company Board, after consultation with Company’s outside counsel, failure to make such disclosure would reasonably be expected to violate its obligations under applicable Law; provided that any public disclosure relating or in response to a Company Acquisition Proposal other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express rejection of any applicable Company Acquisition Proposal, or (C) an express reaffirmation of its recommendation to its stockholders in favor of the Merger, shall be deemed to be a Company Adverse Recommendation Change made in compliance with this for purposes of Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h7.1(g).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Cameron International Corp), Merger Agreement (Natco Group Inc)
No Solicitation. (a) The Company shallEach Party agrees that during the Pre-Closing Period, it shall not, and shall not authorize and shall use its reasonable best efforts to cause its Subsidiaries to and shall request that its RepresentativesRepresentatives not to, immediately cease directly or indirectly, (i) solicit, initiate, knowingly encourage, induce or facilitate the communication, making, submission or announcement of any communications, Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person that may be ongoing other than the other Party hereto and its Representatives regarding any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal or, with respect to a Company Acquisition ProposalAdamis effect any Change in the Adamis Board Recommendation or, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating withDMK, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed effect any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring change in the six DMK Board Recommendation; or (6v) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger intent or similar document or any agreement contemplating or other agreement, arrangement or understanding, in each case otherwise relating to a Company any Acquisition Proposal (other than an Acceptable Company a confidentiality agreement containing terms similar in material respects to the Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)enter into any agreement in principle requiring such Party to abandon, (D) enter into, continue terminate or otherwise participate in any discussions fail to consummate the Merger or negotiations regarding any Company Acquisition Proposal, breach its obligations hereunder or (E) propose or agree to do any of the foregoing; provided. For purposes of clarification, howeverduring the Pre-Closing Period, ifA▇▇▇▇▇ may continue to have discussions with third parties, prior and may enter into agreements or arrangements and may consummate one or more transactions regarding, its assets, business or securities as long as such agreements, arrangements or transactions do not constitute an Acquisition Proposal, Acquisition Inquiry or Alternative Transaction. If any Party or any Representative of such Party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then such Party shall promptly (and in no event later than one business day after such Party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other Party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). Each Party shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry as of the date of this Agreement, and shall instruct its Representatives accordingly. Each Party shall not terminate, release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement (whether entered into before or after the date of this Agreement) to which such Party is a party or under which such Party has any rights, and shall enforce or cause to be enforced each such agreement to the receipt of fullest extent possible.
(b) Notwithstanding anything contained in this Section:
(i) before obtaining the Company Required Adamis Stockholder ApprovalVote, following the receipt of a A▇▇▇▇▇ may furnish nonpublic information regarding A▇▇▇▇▇ to, and enter into discussions or negotiations with, any Person in response to an unsolicited, bona fide written Company Acquisition Proposal that made or received after the Company date of this Agreement, which the Adamis Board determines in good faith constitutes, or is reasonably likely to result in, a Superior Proposal (and is not withdrawn) if: (A) neither A▇▇▇▇▇ nor any Representative of A▇▇▇▇▇ shall have failed to comply with this Section; (B) the Adamis Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that there is or could reasonably be expected a reasonable risk that the failure to lead to take such action would result in a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(athe fiduciary duties of the Adamis Board under applicable law; (C) made after within one business day following the date furnishing of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to to, or entering into discussions with, such Person, A▇▇▇▇▇ gives DMK written notice of the Company enters identity of such Person and that A▇▇▇▇▇ intends to furnish nonpublic information to, or enter into a discussions with, such Person or has furnished, or entered into discussions with, such Person; (D) A▇▇▇▇▇ receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an including nondisclosure provisions, use restrictions, non-solicitation provisions, no hire provisions and “Acceptable Company Confidentiality Agreement”standstill” provisions) that (x) does not contain any provision that would prevent the Company from complying with its obligation at least as favorable to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than Adamis as those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), Agreement; and (2E) promptly (but in any event within 24 hours) one business day following the furnishing of any such nonpublic information to such Person, the Company A▇▇▇▇▇ furnishes such nonpublic information to Parent DMK (to the extent such nonpublic information has not been previously so furnished by A▇▇▇▇▇ to Parent or its RepresentativesDMK).. Without limiting the generality of the foregoing, A▇▇▇▇▇ acknowledges and agrees that in the event any Representative of A▇▇▇▇▇ takes any action that, if take by A▇▇▇▇▇, would constitutes a failure to comply with this Section by A▇▇▇▇▇, the taking of such action by such Representative shall be deemed to constitute a failure to comply with this Section by A▇▇▇▇▇ for purposes of this Agreement; and
(bii) Notwithstanding anything to the contrary set forth in this Agreement, if at any time before obtaining the Required Adamis Stockholder Vote, A▇▇▇▇▇ receives an unsolicited bona fide written Acquisition Proposal that did not relate to a breach of this Section and which the Adamis Board determines in good faith constitutes a Superior Proposal, and A▇▇▇▇▇ and its Representatives have otherwise complied in all material respects with its obligations under this Section 4.5, the Adamis Board may on four (4) Business Days’ prior written Notice of Superior Proposal to DMK (“Notice of Superior Proposal”) (which notice shall include the receipt forms of agreements pursuant to which the Superior Proposal would be implemented or, if no such agreements have been proposed, a written summary of the Company Stockholder Approvalmaterial terms and conditions of such Superior Proposal) (it being understood that A▇▇▇▇▇ must deliver a new Notice of Superior Proposal and thereafter negotiate as provided herein in the event of any modification to an Acquisition Proposal if such modification results in the determination that such Acquisition Proposal is a Superior Proposal), the Company Board may effect a Company Adverse Recommendation Change take any action otherwise prohibited by Section 4.5(a) and cause A▇▇▇▇▇ to terminate this Agreement pursuant to Section 9.1(i) if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Adamis Board concludes shall have first determined in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that there is a reasonable risk that the failure to take such Company Acquisition Proposal constitutes action would result in a Company Superior Proposal; breach of its fiduciary duties under the DGCL, and (IIIB) the Company Board concludes Adamis shall have notified DMK of such determination and offered to discuss in good faith with DMK (and, if DMK accepts, thereafter negotiates in good faith), for a period of no less than four (4) Business Days, any adjustments in the terms and conditions of this Agreement proposed by DMK, and the Adamis Board shall have resolved, after taking into account the results of such discussions and proposals by DMK, if any, that the Acquisition Proposal remains a Superior Proposal.
(c) Nothing contained in this Section or in Section 5.3 shall prohibit A▇▇▇▇▇ from taking and disclosing to its stockholders a position with respect to a tender offer contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or from making any disclosure to Adamis’ stockholders if, in the good faith judgment of the Adamis Board, after consultation with the Company’s outside legal counsel, that there is a reasonable risk that the failure to make so disclose would result in a Company Adverse Recommendation Change would be inconsistent with the breach of its fiduciary duties of under the Company Board under applicable LawDGCL; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company provided that disclosure to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention stockholders pursuant to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination Rule 14e-2 relating to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company an Acquisition Proposal and any related Alternative Company or Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will Inquiry shall be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02Change in the Adamis Board Recommendation unless the Adamis Board expressly, and without qualification, concurrently with such disclosure reaffirms the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Adamis Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Recommendation.
(cd) In addition For purposes of clarification, during the Pre-Closing Period and thereafter, A▇▇▇▇▇ may continue to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers have discussions with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofthird parties, and including copies of any written inquiriesmay enter into agreements or arrangements and may consummate one or more transactions regarding, proposals its assets, business or offerssecurities as long as such agreement, including proposed agreements and material modifications thereto)arrangements or transactions do not constitute an Acquisition Transaction.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Adamis Pharmaceuticals Corp), Agreement and Plan of Merger and Reorganization (Adamis Pharmaceuticals Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to From the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Expiration Date, the Company Stockholder shall not, nor and shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of instruct its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) initiate, seek or solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information which has not been previously publicly disseminated)non-public information) or take any other action that is reasonably expected to promote, directly or knowingly facilitate indirectly, any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would reasonably be expected to lead to, a Company an Acquisition ProposalProposal with respect to Keryx, (Bii) subject to Section 5.02(b), approve participate or recommendengage in discussions or negotiations with, or publicly propose disclose any non-public information or data relating to, Keryx or any of its Subsidiaries to approve any Person that has made or recommend, a Company could reasonably be expected to make an Acquisition Proposal, Proposal with respect to Keryx or (Ciii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any agreement with a party other than Akebia, Keryx or their Affiliates, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, arrangement or understanding, in each case relating with respect to a Company an Acquisition Proposal with respect to Keryx. The Stockholder shall, and shall instruct its Representatives to, (x) cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Akebia and its Affiliates) conducted heretofore with respect to an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or which could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company an Acquisition Proposal, and, in connection therewith, immediately discontinue access by any Person (other than Akebia and subject its Affiliates) to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making any data room (virtual or otherwise) established for such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 purpose and (y) contains provisions that in request the aggregate are no less restrictive on such Person return or destruction of all confidential and non-public information provided to third parties (other than those contained in the Confidentiality Agreement as in effect immediately prior Stockholder’s Representatives) since January 1, 2017, relating to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company an Acquisition Proposal), and within two (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, Business Days from the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)date hereof.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b4(a), the Company Stockholder shall, subject to applicable law, rule or regulation (including that of a national securities exchange or self-regulatory organization), (i) shall as promptly (as practicable after receipt thereof, and in any event within 24 hours) notify Parent , advise Akebia in writing of any inquiries, proposals request for information or offers any Acquisition Proposal with respect to a Company Keryx, and the terms and conditions of such request, Acquisition Proposal that are received byProposal, or any non-public information with regard to such Company Acquisition Proposal is requested frominquiry, or any discussions or negotiations are sought negotiations, and (ii) provide to be initiated regarding such Company Acquisition Proposal with, Akebia copies of any written materials received by the Company (or any of its Representatives), indicating, Stockholder in connection with such notice, any of the foregoing and the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiriesrequest, proposals Acquisition Proposal or offers (and providing copies of all related written inquiries, proposals inquiry or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in with whom any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)are taking place.
Appears in 2 contracts
Sources: Voting Agreement (Akebia Therapeutics, Inc.), Voting Agreement (Keryx Biopharmaceuticals Inc)
No Solicitation. (a) The From the date hereof through midnight, New York time on January 22, 2018 (i.e., one minute after 11:59 p.m., New York time, on January 22, 2018) (the “Go-Shop Period”), the Company shallStockholder shall have the right to, shall cause its Subsidiaries to and shall request that its Representativesdirectly or indirectly, immediately cease (i) solicit or initiate Acquisition Proposals (or inquiries, proposals or offers that may reasonably be expected to lead to an Acquisition Proposal), including by way of providing access to non-public information pursuant to an Acceptable Confidentiality Agreement so long as prior thereto, or concurrently therewith, such non-public information is also provided to the Parent and (ii) enter into, continue or otherwise participate in any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposals (or for the purpose of encouraging or facilitating an Acquisition Proposal) and otherwise cooperate with, facilitate, assist or participate in any such inquiries, proposals, offers, efforts, discussions or negotiations.
(iib) furnishing to any Person (other than ParentAfter the end of the Go-Shop Period, Merger Subexcept as set forth in this Section 6, their respective Representatives and the Company’s Representatives) any information except with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Qualified Person, the Company Stockholder hereby agrees that it shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing solicitations, discussions and negotiations with any Person conducted heretofore with respect to any Acquisition Proposal. After the end of the Go-Shop Period, except as permitted by Section 6(c) and except with respect to any Qualified Person, the Company Stockholder agrees that it shall not, nor and it shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of cause its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate initiate, knowingly facilitate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)any inquiries regarding, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would reasonably be expected to lead to, a Company an Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (Dii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition ProposalProposal (other than with the Parent and its Representatives), or (Eiii) agree grant any waiver or release under any standstill or similar agreement with respect to do any of the foregoing; provided, however, if, prior to the receipt equity securities of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Subsidiaries.
(bc) Notwithstanding anything to the contrary in this Agreement, prior solely to the receipt extent the Company is permitted to take the actions set forth in Section 6.1 of the Merger Agreement with respect to an Acquisition Proposal and the Company Stockholder has not breached this Section 6, the Company Stockholder and its Representatives will be free to participate in any discussions or negotiations regarding such Acquisition Proposal (including, without limitation, any related stockholders’ consent or voting agreement) with the Person making such Acquisition Proposal and to otherwise take action to the extent the Company may take such action, provided that such action by the Company Stockholder and its Representatives would be permitted to be taken by the Company pursuant to Section 6.1 of the Merger Agreement. For purposes of this Section 6, the Company will be deemed not to be a Representative of the Company Stockholder ApprovalStockholder, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn any officer, director, employee, agent or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties advisor of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure solely in their capacities as such) will be deemed not to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties a Representative of the Company Board under applicable LawStockholder. Any amendment or modification to For the conditionalityavoidance of doubt, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of nothing in this Section 5.02, and the Company 6 shall promptly (but affect in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to way the obligations of Parent and any Person (including the Company set forth in Company) under Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity 6.1 of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement, Voting and Support Agreement (Regal Entertainment Group)
No Solicitation. (a) The Neither the Company nor any of its Subsidiaries shall, nor shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions of its Subsidiaries authorize or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries or their Representatives to, nor and the Company shall it authorize or knowingly permit any of its Representatives instruct, and cause each applicable Subsidiary and Affiliate, if any, to (and shall use reasonable best efforts to cause instruct, each such Persons Representative not to), directly or indirectly, (A) solicit, initiate or knowingly take any action to facilitate or encourage (including by way the submission of furnishing information which has not been previously publicly disseminated), any Acquisition Proposal or knowingly facilitate any inquiry inquiries or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(b), (i) solicit, initiate, seek, support or submission of knowingly induce any inquiry, proposal, indication of interest proposal or offer which that constitutes, or would could reasonably be expected to lead to, a Company an Acquisition Proposal, (Bii) subject to Section 5.02(b), approve conduct or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate engage in any discussions or negotiations regarding with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that constitutes, or could reasonably lead to, an Acquisition Proposal, (iii) (A) 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 of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 6.4(b) and Section 6.4(c), neither the Company Board nor any committee thereof shall withhold, withdraw, amend or modify in a manner adverse to Parent or Merger Sub the Board Recommendation, or recommend an Acquisition Proposal, or fail to recommend against acceptance of any tender offer or exchange offer for the Company Shares within ten (E10) agree to do Business Days after the commencement of such offer (any of the foregoing; provided, howeveran “Adverse Recommendation Change”). The Company shall, ifand shall cause its Subsidiaries and its and their respective Representatives 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 or on the date hereof with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to but not after the receipt time the vote is taken with respect to the adoption of this Agreement at the Stockholder Meeting, the Company Stockholder ApprovalBoard, following the receipt of directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that has made (and not withdrawn) a bona fide written Company Acquisition Proposal in writing that the Company Board determines in good faithreasonably believes, after consultation with considering the Company’s outside financial advisors and advice of its outside legal counselcounsel and of a financial advisor of nationally recognized reputation, is constitutes a Superior Proposal or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(aProposal, (ii) made after the date of this Agreement, the Company may, in response thereafter furnish to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to such Person, the Company enters into a an executed confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does terms not contain any provision that would prevent materially less favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidential Disclosure Agreement effective as of September 10, 2007 between the Company and Parent (the “Confidentiality Agreement”), which Confidentiality Agreement as in shall not include any provision for any exclusive right to negotiate with such Third Party or having the actual effect of restricting the Company from fulfilling its obligations under this Agreement, (iii) following receipt of such Acquisition Proposal, make an Adverse Recommendation Change; provided, that, immediately prior to the execution adoption of this Agreement (provided, that such agreement does not need a resolution to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approvalmake an Adverse Recommendation Change, the Company Board may effect a Company Adverse Recommendation Change if (has determined after considering the advice of its outside legal counsel and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counseladvisor of a nationally recognized reputation, that such Company Acquisition Proposal constitutes a Company Superior Proposal; Proposal and / or (IIIiv) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, take any action that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties any court of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize competent jurisdiction orders the Company to enter into any Alternative Company Acquisition Agreement unless:
take, but in each case referred to in the foregoing clauses (i) the Company Board provides Parent at least five through (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Changeiii), which notice shall include, as applicable, only if (A) the information with respect to the Company such Superior Proposal that is specified in shall not have arisen from a material breach of the provisions of this Section 5.02(c), as well 6.4 or was not otherwise submitted as a copy result of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail a violation of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)6.4, the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent shall have complied with the fiduciary duties of its obligations under this Section 6.4 and (C) the Company Board determines by a majority vote, after considering the advice of outside legal counsel to the Company, that it is necessary or appropriate to take such action to comply with its fiduciary duties under applicable Applicable Law. Any amendment Nothing contained herein shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) or modification Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal. The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of the Section 6.4(b) unless the Company shall have first complied with the provisions of Section 6.4(c) hereof and delivered to Parent a prior written notice advising that it intends to take such action.
(c) The Company shall notify Parent promptly, but in no event later than the earlier of (x) the second Business Day, or (y) forty-eight (48) hours, after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives), of any Acquisition Proposal or any inquiry (including any request for non-public information) that constitutes or could reasonably be expected to lead to an Acquisition Proposal as well as the identity of the Third Party making any such Acquisition Proposal and the price and material terms and conditions communicated with respect to such Acquisition Proposal. The Company shall provide such notice in writing. The Company shall keep Parent informed, as promptly as practicable, of the status and details of any such Acquisition Proposal and provide Parent as promptly as practicable, but in no event later than the earlier of (x) the second Business Day or (y) forty-eight (48) hours after receipt by the Company, a copy of all written proposals and drafts of definitive agreements provided to the conditionalityCompany in connection with any such Acquisition Proposal or inquiry. After initial notice to Parent in accordance with this Section 6.4(c) of a Third Party making an Acquisition Proposal, if requested by Parent, the Company shall engage in good faith negotiations with Parent for ninety-six (96) hours after that notice is given to amend this Agreement in such a manner that such Acquisition Proposal would not be a Superior Proposal. If, subsequent to such initial notice, there is a change in price or form of consideration of any Company Superior Proposal will be deemed to be a new Company such Acquisition Proposal for purposes of this Section 5.02Proposal, and then the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company change and shall engage in good faith negotiations with Parent for ninety-six (96) hours after notice of that change is given to Parent to amend this Agreement in such a manner that such Acquisition Proposal and would not be a Superior Proposal. The Company shall provide Parent with at least two (2) Business Days prior notice (or such lesser prior notice as provided to the Parties shall comply with the provisions members of this Section 5.02(bCompany Board) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after any meeting of the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, at which the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect reasonably expected to a Company Superior discuss any Acquisition Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition including to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to determine whether such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
No Solicitation. (a) The Company shallhas, shall and will cause its Subsidiaries Representatives (as defined below) to have, ceased and shall request that its Representativesterminated all existing discussions, immediately cease (i) any communications, discussions or negotiations and communications with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person persons (other than Parent, Merger Sub, Sub or any of their respective Representatives and Subsidiaries or Representatives) with respect to any offer or proposal relating to any transaction or proposed transaction or series of related transactions, other than the transactions contemplated hereby, involving: (A) any consolidation, tender offer, business combination, merger or similar transaction involving the Company or any Company Subsidiary; (B) any recapitalization, restructuring, liquidation or dissolution of the Company or any Company Subsidiary, (C) any issuance by the Company individually or in the aggregate of over fifteen percent (15%) of its equity securities or (D) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or its Subsidiaries (including for this purpose the outstanding equity securities of the Company’s RepresentativesSubsidiaries) any information with respect for consideration equal to a Company Acquisition Proposal and fifteen percent (iii15%) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to more of the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in market value of all of the six (6) months outstanding Shares on the last trading day prior to the date of this AgreementAgreement or fifteen percent (15%) of the consolidated total assets of the Company and the Company Subsidiaries (each of clauses (A)-(D), an “Acquisition Proposal”). From and after Except as provided in this Section 5.2, from the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9or the Effective Time, the Company shall not, nor not and shall it permit any of its Subsidiaries to, nor shall it not authorize or knowingly permit any its officers, directors, employees, investment bankers, attorneys, accountants or other agents or those of its Representatives the Company Subsidiaries (collectively, “Representatives”) to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly (i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)encourage, or knowingly take any action to facilitate any inquiry or the making of, any offer or submission of any inquiry, proposal, indication of interest proposal which constitutes or offer which constitutes, or would is reasonably be expected likely to lead to, a Company to any Acquisition Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating with respect to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (Eiii) agree to do engage in negotiations or discussions with, or provide any non-public information or data to, any person (other than Parent or any of the foregoing; provided, however, if, prior its affiliates or Representatives) relating to the receipt any Acquisition Proposal. The Company agrees that any material violations of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines restrictions set forth in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date 5.2 by any of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing its Representatives shall be deemed to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution material breach of this Agreement (providedincluding this Section 5.2) by the Company. Notwithstanding the foregoing, that such agreement does not need to contain nothing contained in this Section 5.2 or any other provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, hereof shall prohibit the Company furnishes such nonpublic information to Parent (or the Company Board of Directors from taking and disclosing to the extent such nonpublic information has not been previously so furnished Company’s stockholders its position with respect to Parent any tender or its Representatives)exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(b) Notwithstanding anything to the contrary set forth in this Agreement, prior to the receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board and its Representatives may effect a furnish non-public information regarding the Company Adverse Recommendation Change if (to any person and may negotiate and participate in discussions and negotiations with such person concerning an Acquisition Proposal if, but only if): (I) (A) a written Company Acquisition Proposal that was not solicited , such person has, in the absence of any material violation of this Section 5.02(a) is made 5.2 by the Company, submitted a bona fide written proposal to the Company by a Third Party and relating to any such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in which the case Board of a Company Acquisition Proposal, the Company Board concludes Directors determines in good faith, after consultation with its financial advisor, is or is reasonably expected to lead to a Superior Proposal. From and after the date hereof and prior to the Acceptance Time, the Company shall within twenty-four (24) hours notify the Parent in writing in the event that the Company or any of the Company Subsidiaries or Representatives receives (i) any Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of the Company Subsidiaries other than requests for information in the ordinary course of business and, in the good faith judgment of the Company Board of Directors, unrelated to an Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent within such twenty-four (24) hour period with the identity of such Person and a copy of such Acquisition Proposal, inquiry or request (or, where such Acquisition Proposal is not in writing, a description of the material terms and conditions of such Acquisition Proposal, inquiry or request). The Company shall keep the Parent reasonably informed in writing (and in any event no later than twenty-four (24) hours after the occurrence) of any material changes, developments, discussions or negotiations relating to any Acquisition Proposal and provide Parent with copies of all documents received or provided by the Company related to such Acquisition Proposal. Without limiting the foregoing, the Company shall within twenty-four (24) hours notify the Parent in writing if the Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any agreement with any person subsequent to the date of this Agreement that would restrict the Company’s outside financial advisors ability to provide such information to Parent, and, if the Company is a party to any agreement that would prohibit the Company from providing such information to Parent, prior to providing non-public information to, or engaging in discussions or negotiations with, the counterparty to such agreement, the Company will obtain approval from the counterparty to such agreement to allow the Company to provide such information to Parent. The Company shall not, and outside legal counselshall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of the Company Subsidiaries is or becomes a party; provided, however, that such the Company and the Company Subsidiaries may respond to an unsolicited Acquisition Proposal constitutes submitted to the Company by a Company Superior Proposal; party that is bound by a standstill agreement and (III) may decline to enforce or cause to be enforced its rights under such standstill agreement relating to the submission of such unsolicited Acquisition Proposal if, in either case, the Company Board concludes of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change so respond or failure to decline to take such action, as the case may be, would be inconsistent with the fiduciary duties of the Company Board of Directors to the stockholders of the Company under applicable Law; provided. The Company will promptly provide to the Parent any non-public information concerning the Company or the Company Subsidiaries provided or made available pursuant to this Section 5.2(b) which was not previously provided or made available to the Parent.
(c) Except as set forth herein, howeverneither the Company Board of Directors nor any committee thereof shall (i) withdraw, none of withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, in a manner adverse to the Companytransactions contemplated by this Agreement to Parent or Sub, the Company Board Recommendation, (ii) approve or recommend or propose publicly to approve or recommend, any committee thereof shall make a Company Acquisition Proposal (any action referred to in the foregoing clauses (i) and (ii) being referred to as an “Adverse Recommendation Change and/or authorize the Company to Change”) or (iii) enter into any written agreement providing for the consummation of any Acquisition Proposal (an “Alternative Company Acquisition Agreement”).
(d) Notwithstanding anything in this Agreement unless:
to the contrary, prior to the Acceptance Time, if (i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such noticereceives a written, update or amendment shall not, by itself, constitute bona fide Acquisition Proposal from a Company Adverse Recommendation Change), which notice shall include, as applicablethird party, (Aii) a material breach by the information with respect Company of this Section 5.2 has not contributed to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy making of such Company an Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (Biii) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board Directors concludes in good faith, after consultation with the Company’s outside legal counsel and its financial advisors (and taking into account any adjustment or modification advisors, such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement proposed and irrevocably committed to in writing which have been offered by Parent and capable of acceptance by the Company)(if any) pursuant to this Section 5.2, that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change andBoard of Directors may, if it determines in each casegood faith, after consultation with outside counsel, that the failure to make take such Company Adverse Recommendation Change action would be inconsistent with the fiduciary duties of the Company Board of Directors to the stockholders of the Company under applicable Law. Any amendment or modification , (A) effect an Adverse Recommendation Change and/or (B) terminate this Agreement to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company enter into an Alternative Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) Agreement with respect theretoto such Superior Proposal; provided, however, that the “matching period” set forth above Company shall not terminate this Agreement pursuant to the foregoing clause (B), and any purported termination pursuant to the foregoing clause (B) shall be void and of no force or effect, unless in advance of or substantially concurrently with such circumstance expire on termination the later Company (1) pays the fee required by and pursuant to the terms of Section 8.2 and (2) immediately following such termination enters into a binding definitive agreement providing for such Superior Proposal; and provided, further, that the Company Board of Directors may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or terminate this Agreement pursuant to the foregoing clause (B) unless (1) the Company shall not have breached in any material respect this Section 5.2, (2) the Company shall have provided prior written notice to the Parent, at least three (3) business days after in advance (the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end “Notice Period”), of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) Company’s intention to take such action with respect to a Company such Superior Proposal, the Company which notice shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and specify the material terms and conditions of any such inquiriesSuperior Proposal (including the identity of the party making such Superior Proposal), proposals and shall have contemporaneously provided a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal, (3) prior to effecting such Adverse Recommendation Change or offers terminating this Agreement to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with the Parent in good faith (to the extent the Parent desires to negotiate) to make such adjustments in the terms and providing copies conditions of all related this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (4) following any negotiation described in the immediately preceding clause (3), such Acquisition Proposal continues to constitute a Superior Proposal. In the event of any material revisions to the terms of the Superior Proposal after the start of the Notice Period, the Company shall be required to deliver a new written inquiriesnotice to the Parent and to comply with the requirements of this Section 5.2 with respect to such new written notice, proposals and the Notice Period shall be deemed to have re-commenced on the date of such new notice. Notwithstanding the foregoing, if fewer than three (3) business days remains before the then-scheduled expiration date of the Offer, the Notice Period with respect to the Company Board of Directors effecting an Adverse Recommendation Change pursuant to the foregoing clause (A) shall equal twenty-four (24) hours, provided, however, that, in such a circumstance, the Notice Period with respect to the Company terminating this Agreement pursuant to the foregoing clause (B) shall remain three (3) business days. Any Adverse Recommendation Change shall not change the approval of the Company Board of Directors for purposes of causing any state takeover statute or offersother state Law to be inapplicable to the transactions contemplated by this Agreement, including proposed agreements) each of the Offer and the Merger or by the tender and voting Agreements with Principal Stockholders. For purposes of this Agreement, a “Superior Proposal” is a bona fide written Acquisition Proposal to acquire at least fifty percent (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours50%) of the status equity securities of any material discussions the Company or at least fifty percent (50%) of the consolidated total assets of the Company and the Company Subsidiaries,
(A) on terms which the Company Board of Directors determines in its good faith judgment (after consultation with its financial advisors) to be more favorable to the holders of Shares from a financial point of view than the Offer and the Merger, and (B) which the Company Board of Directors has determined in its good faith judgment (after consultation with its financial and legal advisors) to be reasonably capable of being completed on the terms proposed, taking into account all financial, regulatory, legal and other aspects of such proposal.
(e) Notwithstanding the foregoing, the Company Board of Directors may withdraw or modify the Company Board Recommendation in the absence of a Superior Proposal if the Company Board of Directors has concluded in good faith, after consultation with its outside counsel, that failure to so withdraw or modify the Company Board Recommendation would be inconsistent with the fiduciary obligations of the Company Board of Directors to the stockholders of the Company under applicable Law, provided, however, that the Company Board of Directors shall not so withdraw or modify the Company Board Recommendation unless the Company has (A) provided to the Parent at least three (3) business days prior written notice (or such shorter period as remains prior to the then-scheduled expiration date of the Offer) advising the Parent that the Company Board of Directors intends to take such action and specifying the reasons therefore in reasonable detail and (B) during such three (3) business day period, or shorter period, as the case may be, if requested by the Parent, engaged in good faith negotiations with respect the Parent to any amend this Agreement in such inquiriesa manner that obviates the need or reason for the withdrawal or modification.
(f) The Company shall promptly (but in no event later than two (2) business days after the date of this Agreement) demand that each person that, proposal as of the date of this Agreement, has executed a confidentiality agreement in connection with a potential Acquisition Proposal return (or offers and the details of any material changes destroy, to the status and material extent permitted by the terms of any the applicable confidentiality agreement) all confidential information heretofore furnished to such inquiries, proposals individual or offers (including any material amendments thereto entity by or any change to on behalf of the scope Company or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)a Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Group S.a.r.l.)
No Solicitation. From the date hereof until the earlier of the termination of this Agreement pursuant to its terms and the Closing Date, the Company will not, and will cause the officers, managers, directors, employees, financial advisors, representatives, agents and Affiliates of the Company (a“Company Representatives”) The not to, directly or indirectly, take any action to solicit, initiate, seek, entertain, encourage, support, assist, participate in any negotiations or communications regarding, or cooperate with any inquiry, proposal or offer from, or furnish any information to, any third party regarding any merger, recapitalization or consolidation with or involving the Company shall, shall cause or its Subsidiaries or any acquisition of membership interests or stock, or right to acquire membership interests or stock (including any conversion right) or acquisition or exclusive license of any assets of the Company or its Subsidiaries or any debt or equity financing transaction of any nature (including the filing of a registration statement with the SEC) or any other similar transaction, the consummation of which would interfere with the Company’s ability to consummate the transactions contemplated hereby (an “Acquisition Transaction”). Upon execution of this Agreement, the Company will, and shall request that its Representativeswill cause Company Representatives to, immediately cease (i) and cause to be terminated any communications, existing direct or indirect discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and ) that are in respect of an Acquisition Transaction. In no event will the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to during the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to period from the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to its terms and the Closing Date, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute either accept or enter into any letter of intent, memorandum of understanding, merger agreement concerning an Acquisition Transaction or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate engage in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal communications that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a an acceptance or entering into of an agreement concerning any Acquisition Transaction. Nothing in this Section 4.6 shall limit discussion between and among the Company Superior Proposal and that was not solicited in violation the Company Representatives. From the date hereof until the earlier of the termination of this Section 5.02(a) made after Agreement pursuant to its terms and the date of this AgreementClosing Date, the Company may, in response to such Company Acquisition Proposalwill, and subject to compliance with Section 5.02(b)will cause the officers, furnish information with respect to the Company to the Person making such Company Acquisition Proposal managers, directors, employees, financial advisors, representatives, agents and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt Affiliates of the Company Stockholder Approvalto, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any no event within 24 hourslater than two (2) Business Days after receipt thereof) notify Parent orally and in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received byproposal for, or inquiry respecting, any non-public information with regard to such Company Acquisition Proposal is requested from, Transaction or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, request for nonpublic information in connection with such noticeproposal or inquiry, or for access to the properties, books, or records of the Company by any person or entity that informs the Company that it is considering making, or has made, such a proposal or inquiry. Such notice must be accompanied by a copy of any written proposal, and in the absence of a written proposal, will indicate the identity of the Person person or group of Persons entity making the proposal or inquiry, proposal or offer the total consideration and the material terms and conditions of any such inquiries, proposals proposal or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall inquiry in reasonable detail. The Company will keep Parent reasonably informed, informed on a reasonably prompt current basis (and, in any event, within 24 hourstwo (2) Business Days) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes modifications to the status and material terms of any such inquiriesproposal, proposals offer or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)request.
Appears in 2 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Vmware, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Article VII, except as specifically permitted by this Section 5.4 or Section 5.18, the Company shall not, nor and shall it permit any cause each of its Subsidiaries Subsidiaries, directors, executive officers, or controlled Affiliates not to, nor and shall it authorize instruct its other Representatives not to, directly or indirectly:
(i) solicit, initiate, facilitate or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)encourage, directly or indirectly, (A) solicitany inquiries, initiate offers or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)proposals that constitute, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would could reasonably be expected to lead to, any Takeover Proposal;
(ii) engage in discussions or negotiations with, furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to, or give access to the Company Assets to, any Person that has made or may be considering making any Takeover Proposal;
(iii) approve, endorse or recommend any Takeover Proposal; or
(iv) enter into any Contract relating to any Takeover Proposal.
(b) Immediately upon expiration of the Go-Shop Period, until the termination of this Agreement in accordance with Article VII, the Company shall, and shall cause each of its Subsidiaries, Representatives and Subsidiaries’ Representatives to, immediately cease any existing solicitations, discussions or negotiations with any Person conducted with respect to any Takeover Proposal (other than with respect to each Excluded Party only for so long as such Person is and remains an Excluded Party and as otherwise permitted by this Section 5.4). The Company shall promptly inform its Representatives and its Subsidiaries’ Representatives of the Company’s obligations this Section 5.4.
(c) The Company shall notify Parent as promptly as possible within forty-eight (48) hours after receipt of (i) any Takeover Proposal or any inquiry that could reasonably be expected to lead to, or result in, a Company Acquisition Takeover Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries that could reasonably be expected to lead to, or result in, a Takeover Proposal or (iii) any request for access to the Company Assets by any Person that has made any Takeover Proposal, which notice shall be in writing and shall include the identity of such Person or Persons, the material terms and conditions of such Takeover Proposal, indication or request, as applicable, and, if available, a copy of such Takeover Proposal, inquiry, or request. The Company shall keep Parent reasonably informed on a prompt basis of the status and material details of any such Takeover Proposal, inquiry, or request.
(d) Subject to the Company’s compliance with the provisions of this Section 5.4 and prior to obtaining of the Requisite Company Vote, nothing in this Agreement shall prevent the Company (acting upon the recommendation of the Special Committee) or the Special Committee from:
(i) engaging in discussions or negotiations with, or furnishing or disclosing any non-public information relating to the Company or any of its Subsidiaries or giving access to the Company Assets to, any Person who has or Persons who have made a bona fide, written and unsolicited Takeover Proposal if the Special Committee determines that such Takeover Proposal may result in a Superior Proposal, but only so long as the Company has caused such Person or Persons to enter into an Acceptable Confidentiality Agreement with the Company, and the Special Committee has, in good faith, (A) determined, based on the information then available and after consultation with the Company Financial Advisor, that such bona fide, written and unsolicited Takeover Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to, or result in, a Superior Proposal, and (B) subject determined, after consultation with outside legal counsel, that the failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law; and
(ii) entering into an agreement, arrangement or understanding providing for the implementation of a Superior Proposal (an “Alternative Acquisition Agreement”) and terminating this Agreement pursuant to Section 5.02(b7.4(a), approve if, and only if, (A) the Company and its Representatives have not breached (other than any de minimis breach) any of their obligations under Section 5.4 (as modified by Section 5.18) (B) the Company Board (acting on the recommendation of the Special Committee) or recommendthe Special Committee, or publicly propose in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, determines: (I) that a bona fide, written and unsolicited Takeover Proposal constitutes a Superior Proposal, and (II) that failure to approve or recommendenter into an Alternative Acquisition Agreement and terminate this Agreement pursuant to Section 7.4(a), a Company Acquisition Proposalcould be inconsistent with the directors’ fiduciary duties under applicable Law, (C) subject to Section 5.02(b)the Company, approve or recommendas promptly as possible after such determinations, or publicly propose to approve or recommend, or execute or enter into any letter notifies Parent in writing that the Company Board (acting on the recommendation of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreementthe Special Committee) or a Company Superior Proposal the Special Committee has made the determinations provided in the foregoing clause (each an “Alternative Company Acquisition Agreement”B), (D) enter intoduring the three (3) Business Day period following Parent’s receipt of the notice provided pursuant to the foregoing clause (C), continue or otherwise participate the Company shall have, and shall have caused its Representatives to have, negotiated with Parent and its Representatives reasonably and in any discussions or negotiations regarding any good faith in furtherance of making such commercially reasonable adjustments to the terms and conditions of this Agreement as would enable the Company Acquisition Proposalto proceed with the Merger, or (E) agree to do any after the conclusion of the foregoing; providedperiod provided in the foregoing clause (D), howeverCompany Board (acting on the recommendation of the Special Committee) or the Special Committee, ifacting reasonably and in good faith, prior determines, taking into account the negotiations with Parent and its Representatives and any adjustments to the receipt terms and conditions of the Agreement proposed by Parent, after consultation with the Company Stockholder ApprovalFinancial Advisor and outside legal counsel, following (I) that such bona fide, written and unsolicited Takeover Proposals continues to constitute a Superior Proposal, and (II) that the receipt failure to enter into an agreement, arrangement or understanding providing for the implementation of a bona fide written Company Acquisition such Superior Proposal that and the termination of this Agreement pursuant to Section 7.4(a), could be inconsistent with the directors’ fiduciary duties under applicable Law, (F) after such determinations by the Company Board (acting on the recommendation of the Special Committee) or the Special Committee, acting reasonably and in good faith, resolves to terminate this Agreement in accordance with Section 7.4(a) and (G) the Company terminates this Agreement (within two (2) Business Days following the conclusion of the three (3) Business Day period referred to in the foregoing clause (D)) pursuant to Section 7.4(a).
(e) Neither the Special Committee nor the Company Board shall withdraw, modify or amend, or propose to withdraw, modify or amend, the Company Board Recommendation in any manner adverse to Parent unless (i) the Company terminates this Agreement as provided in Section 5.4(d) pursuant to Section 7.4(a) or (ii) an Intervening Event has occurred and the Company Board (acting on the recommendation of the Special Committee) or the Special Committee determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counselcounsel that the failure to withdraw, is modify or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishingamend, or causing propose to be furnishedwithdraw, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct modify or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approvalamend, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made could reasonably be likely to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law.
(f) Nothing set forth in this Agreement shall prohibit the Company from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to a Takeover Proposal, (ii) taking and disclosing to the stockholders of the Company Board any position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition AgreementExchange Act, or (Biii) the facts making any “stop, look and circumstances in reasonable detail listen” or similar communication of the Company Intervening Event;
(iitype contemplated by Rule 14d-9(f) during under the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Exchange Act.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Steel Partners Holdings L.P.), Merger Agreement (Steel Connect, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time Closing Date or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Section 8, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize any Affiliate, officer, director, manager or knowingly permit employee of, or any investment banker, attorney or other advisor or representative (collectively, "REPRESENTATIVES") of the Company or any of its Representatives Subsidiaries to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate initiate, facilitate or knowingly encourage (including by way of furnishing or otherwise disclose nonpublic information which has not been previously publicly disseminated)in furtherance of, any inquiries relating to, or knowingly the submission of, any Acquisition Proposal; (ii) participate in or conduct any discussions or negotiations regarding any Acquisition Proposal, or furnish to any Person any information or data with respect to or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would may reasonably be expected to lead to, a Company any Acquisition Proposal, ; (Biii) subject to Section 5.02(b), approve or recommend, recommend or propose publicly to approve or recommend any Acquisition Proposal or (iv) approve or recommend or propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, recommend or execute or enter into any letter of intent, memorandum of understandingagreement in principle, merger agreement, acquisition agreement, option agreement or other agreement, arrangement similar Contract or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) propose publicly or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing related to any Acquisition Proposal; provided that (subject to Section 5.3(b)) nothing contained in this Section 5.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company Stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the foregoing; provided, however, if, prior to the receipt time of acceptance and deposit of funds for payment in accordance with Section 1.1(b) for shares of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with any Person or group concerning an Acquisition Proposal (as defined below), if:
(i) such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall not be materially more favorable to such Person or group than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.3);
(ii) such Person or group has submitted a written Acquisition Proposal that has been determined or is reasonably likely to be determined to be a Superior Proposal; EXECUTION VERSION
(iii) in the good faith opinion of the Company Stockholder ApprovalBoard, following determined after consulting with independent legal counsel to the receipt Company, that doing so is necessary for the directors to comply with their fiduciary duties to the Company Stockholders under applicable Law; and
(iv) the Company has notified Parent in writing of a bona fide written its intention to engage in such discussions or negotiations or to provide such confidential information not less than three Business Days prior to so doing. The Company will promptly notify Parent in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company regarding any Acquisition Proposal. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other Person in connection with any Acquisition Proposal that was not previously provided to Parent. The Company will keep Parent informed on a prompt basis of the status of any such Acquisition Proposal and of the status of any discussions or negotiations relating to any Acquisition Proposal.
(b) Except as set forth in this Section 5.3(b), the Company Board (i) shall recommend that the Company Stockholders accept the Offer and tender their shares of Company Common Stock pursuant to the Offer and, to the extent necessary under applicable Law to accomplish the Merger, adopt this Agreement; (ii) shall not withdraw, modify, or qualify or propose to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation; (iii) shall not approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (iv) shall not enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement that is entered into in accordance with Section 5.3(a)). Notwithstanding the foregoing, subject to compliance with the provisions of this Section 5.3, prior to the time of acceptance and deposit of funds for payment in accordance with Section 1.1(b) for shares of Company Common Stock pursuant to the Offer, the Company Board, after consulting with outside legal counsel, may withdraw, modify or qualify the Company Board Recommendation, approve or recommend, or propose to approve or recommend, a Superior Proposal, and/or enter into an agreement with respect to a Superior Proposal, if the Company Board determines in good faithfaith that doing so is necessary for the directors to comply with their fiduciary duties to the Company Stockholders under applicable Law; provided that in each case (A) the Company has given Parent written notice at least three Business Days in advance of effecting such action that the Company Board has received a Superior Proposal that it intends to accept, after consultation which specifies all of the terms and conditions of such Superior Proposal (other than immaterial terms), and furnishes Parent with a copy of all the relevant proposed transaction agreements, if such exist, with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Person making such Superior Proposal and identifies such Person or Persons making such Superior Proposal and (B) during the period of not less than three Business Days following the delivery of the notice referred to in clause (A) above and prior to effecting such action, the Company has negotiated, and has used all commercially reasonable efforts to cause its financial and legal advisors to negotiate, with Parent in good faith (to the extent that was not solicited Parent desires to negotiate) to make adjustments in violation the terms and conditions of this Agreement so that the Acquisition Proposal shall cease to constitute a Superior Proposal. EXECUTION VERSION
(c) Nothing in this Section 5.02(a5.3, and no action taken by the Company Board pursuant to this Section 5.3, will permit the Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal (other than a confidentiality agreement to the extent permitted under Section 5.3 hereof unless the Company or Parent has first terminated this Agreement pursuant to Section 8).
(d) made after the date For purposes of this Agreement, "ACQUISITION PROPOSAL" means any bona fide offer, proposal or other indication of interest regarding any of the following (other than the transactions provided for in this Agreement involving the Company): (i) any merger, consolidation, share exchange, recapitalization, reorganization, business combination, liquidation, dissolution or other similar transaction involving the Company mayor any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or more of the Assets of the Company (including the stock of its Subsidiaries) and its Subsidiaries, taken as a whole, in response a single transaction or series of related transactions; (iii) any purchase or sale of or tender offer or exchange offer for, which, if consummated, would result in any Person (or the equity holders of such Person) beneficially owning securities representing 15% or more of the outstanding shares of capital stock of the Company or its Subsidiaries, or the filing of a registration statement under the Securities Act in connection therewith or (iv) any public announcement of a proposal, plan or intention to such Company do any of the foregoing or any agreement to engage in any of the foregoing except "Acquisition ProposalProposal does not include any offer or proposal by Parent or its Affiliates. For purposes of this Agreement, and subject to compliance with Section 5.02(b), furnish information "SUPERIOR PROPOSAL" shall mean a written Acquisition Proposal with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, which the Company Board concludes in good faith, after consultation with the Company’s outside its financial advisors and outside legal counseladvisors, that such Company Acquisition Proposal constitutes a Company Superior Proposal; taking into account all legal, financial, regulatory and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties other aspects of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto proposal and the determination person making the proposal (including any break-up fees, expense reimbursement provisions and conditions to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(cconsummation), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail after giving effect to all of the adjustments, if any, which are in fact offered by Parent pursuant to Section 5.3(b) (i) is more favorable to the Company Intervening Event;
Stockholders, from a financial point of view, than the transactions contemplated by this Agreement and (ii) during to the five (5) days following extent cash consideration, if any, is contemplated, is fully financed or reasonably capable of being fully financed 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 written notice described in the foregoing clause (i) (or such shorter period as is specified term in this Section 5.02(b) below5.3(d), except that the Company Board and its Representatives have negotiated in good faith with Parent (reference to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal "15% or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described more" in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification definition of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company "Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will Proposal" shall be deemed to be a new reference to "a majority" and "Acquisition Proposal" shall only be deemed to refer to a transaction involving a majority of the equity securities of the Company or all or substantially all of the consolidated assets of the Company and its Subsidiaries; provided that no Acquisition Proposal for purposes shall constitute a Superior Proposal if it resulted from a breach or was negotiated by the Company in violation of this Section 5.02, and 5.3 or if the Company shall promptly failed to (but in any event within 24 hours of occurrenceA) notify give Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described as provided in clause (iiA) above; provided, furtherof the last sentence of Section 5.3(b), (xB) whether negotiate, or not there is a Company Adverse Recommendation Changeuse its commercially reasonable efforts to cause its financial and legal advisors to negotiate, unless this Agreement has been terminated with Parent in accordance with good faith (as required by Section 9.01, 5.3(b) and to the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (yextent Parent desired to negotiate) to make adjustments in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any this Agreement so that such inquiriesAcquisition Proposal ceases to constitute a Superior Proposal or (C) in all material respects, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, informed on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material such Acquisition Proposal and of the status of any discussions or negotiations with respect relating to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).Acquisition Proposal. EXECUTION VERSION
Appears in 2 contracts
Sources: Merger Agreement (Superior Consultant Holdings Corp), Merger Agreement (Affiliated Computer Services Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Infiniti, Holdco, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreementhereof. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE Article 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it or authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), ) or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommendapprove, recommend or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or approve, recommend, or publicly propose to approve or recommend, recommend or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Shareholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) and was made after the date of this Agreementhereof, the Company may, in response to such Company Acquisition Proposal, Proposal and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, provided that such agreement does not need to contain any provision prohibiting (including, including any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Shareholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Eventwithdrawn; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under the circumstances and applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) specify in detail the reasons therefor and shall include the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) 5.02 below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent unless Parent desires has expressly agreed in writing not to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal (it being understood that any modification to the financial or other material terms of such Company Intervening Event, as applicableSuperior Proposal shall result in a new five (5) day period under this Section 5.02(b)(ii)); and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) 5.02 below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Companyproposed), that, as applicable (A) that the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that and the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of owed by the Company Board to the Company under the circumstances and applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) 5.02 with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders shareholders at the Company Stockholders MeetingShareholders’ Meeting (provided, however that, for so long as there is a Company Adverse Recommendation Change, the Company Board shall nevertheless be required in such case to solicit proxies in favor of the adoption of the Merger Agreement and the Transactions); and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) 5.02 with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h9.01(f).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing (i) of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person making such Company Acquisition Proposal, information request or inquiry. In no event shall the Company begin providing any such information or engage in such discussions or negotiations prior to providing Parent with the notice required by the preceding sentence. The Company thereafter shall (x) keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)) and (y) substantially concurrently with the delivery to any such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Id Systems Inc), Merger Agreement (Pointer Telocation LTD)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to From the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time Closing or the date of earlier termination of this Agreement in accordance with ARTICLE 9its terms, the Company shall not, nor directly or indirectly through any of its Subsidiaries or affiliates or any of its or their respective Representatives, and shall it not permit any of its Subsidiaries or affiliates or any of their respective Representatives to, nor shall it authorize (1) initiate, solicit or knowingly permit facilitate or knowingly encourage an Acquisition Proposal or (2) engage with any third party in any discussions or negotiations concerning, or furnish any confidential information to any third party in connection with, an Acquisition Proposal, or any inquiry or proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of its Representatives to (and shall use reasonable best efforts to cause such Persons not tothe existence of the provisions of this Section 6.08), directly provided, however, for purposes of this Section 6.08 the term “affiliate” shall not include any Person that becomes an affiliate of the Company after the date of this Agreement without any action on the part of the Company. Notwithstanding anything to the contrary in the previous sentence, prior to the Acceptance Date, the Company may furnish information to, or indirectlyenter into discussions or negotiations with, any Person that has made an Acquisition Proposal if, and only to the extent that: (A) solicit, initiate the receipt of such Acquisition Proposal did not result from a breach of (1) clause (1) of the first sentence of this Section 6.08(a) or knowingly encourage (including by way 2) any other provision of furnishing information which has not been previously publicly disseminated), or knowingly facilitate this Section 6.08 in any inquiry material respect; (B) such Acquisition Proposal constitutes a Superior Proposal or the making Company Board, after consulting with the Company’s outside legal and financial advisors, determines in good faith that (1) such Acquisition Proposal, after furnishing such information and entering into such discussions or submission of any inquirynegotiations, proposal, indication of interest or offer which constitutes, or would could reasonably be expected to result in a Superior Proposal and (2) the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s shareholders under applicable Law; and (C) prior to furnishing such information, the Company receives from such Person an executed confidentiality agreement on customary terms that are no less favorable to the Company than the terms of the Confidentiality Agreement; provided, however, that the Company may, after making the determination described in clause (B) above, enter into discussions or negotiations solely with respect to entering into such confidentiality agreement and will not be deemed to be in breach of this Section 6.08 as a result thereof.
(b) From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, the Company shall promptly, but in any event within twenty-four (24) hours, notify Parent following receipt by the Company of any Acquisition Proposal, the material terms thereof and material conditions thereto and the identity of the Person making such Acquisition Proposal, as well as any material modification of or amendment thereto, or of any bona fide communication by any Person that affirmatively states that it relates to, or could lead to, or that any party is contemplating, a potential Acquisition Proposal, including the identity of the Person making or on whose behalf such communication was made and the other material facts of such communication, and the Company will keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to such Acquisition Proposal or other communication.
(c) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly request that all confidential information previously provided to any such Persons be returned or destroyed in accordance with the confidentiality agreements in effect with such Persons that remain in effect as of the date of this Agreement and, subject to the second sentence of Section 6.08(a) with respect to any Acquisition Proposal received after the date hereof and compliance with the procedures provided therein, shall deny access to any data room (virtual or actual) containing any confidential information to all such Persons.
(d) Nothing contained in this Section 6.08 prohibits or will be construed as prohibiting the Company or the Company Board from (1) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (2) making any disclosure to the Company’s shareholders if, in the good faith judgment of the Company Board after consultation with outside counsel, failure to make such disclosure would be inconsistent with its fiduciary obligations under applicable Law.
(e) Except as otherwise permitted hereby, from the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, neither the Company Board nor any committee thereof shall (1) approve or accept any Acquisition Proposal, (B2) subject cause or permit the Company to Section 5.02(b), approve or recommend, or publicly propose agree to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, license agreement, stock purchase agreement or other agreement, arrangement or understanding, in each case relating similar agreement with respect to a Company any Acquisition Proposal or (other than 3) fail to make, withdraw, modify or qualify in a manner adverse to Parent or Purchaser, or agree or publicly propose to withdraw, modify or qualify in a manner adverse to Parent or Purchaser, the Company Board Recommendation, or recommend, or agree or publicly propose to recommend, an Acceptable Company Confidentiality Agreement) Acquisition Proposal, or announce that an Acquisition Proposal constitutes a Company Superior Proposal (each such action described in clause (3) being an “Alternative Company Acquisition AgreementAdverse Recommendation Change”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(bf) Notwithstanding anything to the contrary in this AgreementSection 6.08, at any time prior to the receipt of the Company Stockholder ApprovalAcceptance Date, the Company Board may effect may, following receipt of an Acquisition Proposal that constitutes a Company Superior Proposal, make an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to Section 9.01(i) so as to concurrently with such termination enter into a definitive agreement providing for the transactions contemplated by such Superior Proposal, but only if (and only if): (I1) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and promptly notifies Parent, in writing, at least two (2) Business Days before taking such Company action, of its intention to do so, attaching the most current version of the proposed agreement under which such Acquisition Proposal is proposed to be consummated or, where no such copy is available, a reasonably detailed description of such Acquisition Proposal, and the identity of the third party making the Acquisition Proposal, and (2) Parent does not withdrawn make, within three (3) Business Days (or two (B2) there has been a Company Intervening Event; (II) Business Days in the case of a Company Acquisition Proposalany subsequent offer) after its receipt of that written notification, an offer that the Company Board concludes determines, in good faith, after consultation with its outside financial and legal advisors, is more favorable to the Company’s outside financial advisors and outside legal counsel, that shareholders than such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood and agreed that any amendment to the delivery financial terms or other material terms of such notice and Acquisition Proposal shall require a new written notification from the Company, provided that a two (2) Business Day period shall apply under clause (2) of this Section 6.08(f)). During any amendment three (3) Business Day (or update thereto and two (2) Business Day, in the determination case of subsequent offers) period prior to so deliver such notice, update or amendment shall not, by itself, constitute a Company its effecting an Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect Change pursuant to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b6.08(f) belowor termination pursuant to Section 9.01(i), the Company Board shall, and shall cause its Representatives have negotiated to, negotiate in good faith with Parent (to the extent Parent desires to negotiate) and its Representatives regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be the Transactions proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Parent.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)
No Solicitation. (a) The Company shallSEQUUS shall not, and shall cause its Subsidiaries to not to, and shall request that use its Representativesbest efforts to cause its and its Subsidiaries' respective officers and directors not to, immediately cease (i) any communicationsand shall use commercially reasonable efforts to cause its non-officer employees, discussions investment bankers, attorneys or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, agents retained by or knowingly facilitating acting on behalf of SEQUUS or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries not to: (i) initiate, nor shall it authorize solicit or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)encourage, directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would is reasonably be expected likely to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreementas defined in Section 5.2(c) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”hereof), (Dii) enter intoengage in negotiations or discussions (other than to advise as to the existence or substance of the restrictions set forth in this Section 5.2) with, continue or otherwise participate in furnish any discussions non-public information or negotiations regarding data to, any Company third party relating to an Acquisition Proposal, or (Eiii) agree enter into any agreement with a Potential Acquiror (other than a confidentiality, standstill and nonsolicitation agreement which satisfies the requirements set forth below) with respect to do any of the foregoing; provided, however, if, prior Acquisition Proposal or approve any Acquisition Proposal. Notwithstanding anything to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines contrary contained in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date 5.2 or in any other provision of this Agreement, the Company may, in response to such Company Acquisition Proposal, SEQUUS and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage its board of directors (i) may participate in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, or furnish non-public information or data to any third party that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company has made an unsolicited Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”a "Potential Acquiror") that and/or (xii) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior subject to the execution provisions of this Agreement Section 5.2(b), may approve or accept an unsolicited Acquisition Proposal if the board of directors of SEQUUS determines in good faith (providedA) after receiving written advice from its financial advisor, that such agreement does not need to contain any provision prohibiting Acquisition Proposal is a Superior Proposal (including, any direct or indirect “standstill” or similar provisions that prohibitas defined in Section 5.2(d) the making of any Company Acquisition Proposalhereof), and (2) promptly (but in any event within 24 hoursB) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change participate in such discussions or negotiations or to furnish such information or approve or accept an Acquisition Proposal would be inconsistent with violate the board's fiduciary duties under applicable law. SEQUUS agrees that any non-public information furnished to a Potential Acquiror will be furnished pursuant to a confidentiality, standstill and nonsolicitation agreement containing provisions at least as favorable to SEQUUS as the confidentiality, standstill and nonsolicitation provisions of the Company Board under applicable Law; providedConfidentiality Agreements (as defined in Section 5.3). In the event that SEQUUS shall determine to provide any information as described above, however, none of the Company, the Company Board or shall receive any Acquisition Proposal (or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company material amendment to enter into any Alternative Company an Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation ChangeProposal previously received), which notice it shall includepromptly, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent , inform ALZA in writing as to that fact and shall furnish to ALZA the identity of the recipient of such information to be provided and/or the Potential Acquiror and the terms of such Acquisition Proposal (or material amendment).
(b) Except as provided in this Section 5.2, the board of directors of SEQUUS shall recommend to its stockholders approval of this Agreement and the Merger. The board of directors of SEQUUS shall not (i) withdraw or modify or propose to withdraw or modify, in any inquiriesmanner adverse to ALZA, proposals its approval and recommendation of this Agreement and the Merger or offers (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal unless, in each case, the board has (x) determined that such Acquisition Proposal is a Superior Proposal, (y) determined in good faith, following consultation with respect outside legal counsel, that the failure to take such action would violate the board's fiduciary duties under applicable law and (z) given at least 72 hours prior written notice to ALZA of its determination under clause (y) of this Section 5.2(b).
(c) For purposes of this Agreement, "Acquisition Proposal" shall mean any bona fide proposal (which may be subject to a Company Acquisition Proposal that are received by"due diligence" condition), whether in writing or otherwise, made by a Third Party (as defined below) for: (i) a transaction or series of related transactions pursuant to which any Person (or any group of Persons acting in concert for the specific purpose of allowing SEQUUS to evade the provisions of this Section 5.2) other than ALZA, SEQUUS or Merger Sub, or any non-public information with regard affiliate thereof (a "Third Party"), acquires or would acquire (upon completion of such transaction or series of related transactions) shares (or securities exercisable for or convertible into shares) representing more than twenty percent (20%) of the outstanding shares of SEQUUS Common Stock, pursuant to such Company Acquisition Proposal is requested froma tender offer or exchange offer or otherwise; (ii) a merger, consolidation, share exchange or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (other business combination involving SEQUUS or any of its Representatives)subsidiaries if, indicatingupon consummation of such merger, in connection with consolidation, share exchange or other business combination, such notice, the identity of the Person Third Party (or group of Persons making the inquiry, proposal its shareholders) owns or offer and the material terms and conditions of any such inquiries, proposals or offers would own more than twenty percent (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours20%) of the status outstanding equity securities of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto SEQUUS or any change of its subsidiaries or the entity surviving such merger or business combination or resulting from such consolidation; (iii) any other transaction or series of related transactions pursuant to which such Third Party acquires or would acquire (upon completion of such transaction or series of related transactions) primary control of assets of SEQUUS or any of its subsidiaries (including, for this purpose, SEQUUS IP Rights or SEQUUS product rights and outstanding equity securities of subsidiaries of SEQUUS) if the scope aggregate dollar value of the consideration proposed to be paid by such Third Party to SEQUUS or material terms its Subsidiary in such transaction exceeds $100 million; or conditions thereof, and including copies (iv) any transaction or series of any written inquiries, proposals related transactions pursuant to which such Third Party acquires or offers, including proposed agreements and material modifications thereto)would acquire (upon completion of such transaction or series of related transactions) control of the board of directors of SEQUUS or by which nominees of such Third Party are (or would be) elected or appointed to a majority of the seats on the board of directors of SEQUUS.
Appears in 2 contracts
Sources: Merger Agreement (Sequus Pharmaceuticals Inc), Merger Agreement (Alza Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date Effective as of this Agreement. From and after the date of this Agreement and until the earlier to occur of (1) the Effective Time or and (2) the date of termination of this Agreement in accordance with ARTICLE 9pursuant to the provisions of Section 10.1, the Company shall not, neither Party will take nor shall it will any Party permit any of its Subsidiaries todirectors, nor shall it authorize officers, agents, employees, Affiliates, attorneys, accountants, financial advisers or knowingly permit any of its Representatives other representatives (collectively, “Representatives”) to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, ): (Ai) solicit, initiate initiate, encourage or knowingly take any action intended to encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, or (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Company Person any information with respect to, an Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, that prior to the receipt approval and adoption of this Agreement and the Company Stockholder Approvaltransactions contemplated by this Agreement by shareholders, following the receipt of a nothing contained in this Agreement shall prevent any Party from furnishing information to, or engaging in negotiations or discussions with, any Person in connection with an unsolicited bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to by such Person, if and to the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) extent that (x) does not contain any provision that would prevent the Company from complying such Party’s Board of Directors determines in good faith (after consultation with its obligation advisors) that such Acquisition Proposal is a Superior Proposal, and such Party’s Board of Directors determines in good faith (after consultation with its outside legal counsel), in the exercise of its fiduciary duties, that to provide any disclosure do otherwise would be inconsistent with its fiduciary duty to Parent required pursuant to this Section 5.02 and the shareholders of such Party, (y) contains provisions that prior to furnishing such information to, or engaging in the aggregate are no less restrictive on negotiations or discussions with, such Person, such Party’s Board of Directors receives from such Person an executed confidentiality agreement with terms no more favorable to such Party than those contained set forth in the Confidentiality Agreement as in effect immediately prior to which the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)Party is bound, and (2z) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, Party gives the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third other Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) business days’ prior written notice of its intention to take such action action.
(it being understood that b) Except as set forth in this Section 8.8, neither Party’s Board of Directors shall (i) withhold, withdraw, amend, change or modify, in each case in a manner adverse to the delivery Party, the approval or recommendation by such Party’s Board of such notice and any amendment or update thereto Directors of this Agreement, and the determination Merger, (ii) approve or recommend any Acquisition Proposal, or (iii) enter into any agreement with respect to so deliver any Acquisition Proposal. Notwithstanding the foregoing, if, prior to the approval and adoption of this Agreement and the transactions contemplated by this Agreement by any Party’s shareholders, such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation ChangeParty’s Board of Directors determines in good faith (after consultation with its advisors), which in the exercise of its fiduciary duties, that (x) the Acquisition Proposal constitutes a Superior Proposal, and (y) to do otherwise would be inconsistent with its fiduciary duty to the shareholders of any Party, after giving five business days’ prior written notice to the other Party, specifying the material terms thereof and the identity of the party making such proposal; provided, however, the identity of the party making such proposal shall includenot be identified if any Party is prohibited from such making disclosure pursuant to a written confidentiality agreement, as applicable, such Party’s Board of Directors may (A) withhold, withdraw, amend, change or modify its approval or recommendation of this Agreement and the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, Merger or (B) the facts enter into an agreement with respect to a Superior Proposal, and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described shall, in the foregoing clause case of (i) (or such shorter period as is specified in this Section 5.02(b) belowB), the Company Board terminate this Agreement in accordance with Section 10.1; provided, however, that any Party shall have caused its financial and its Representatives have negotiated legal advisors to negotiate in good faith with Parent (any Party during such five business days to the extent Parent desires to negotiate) regarding any revisions make such adjustments to the terms and conditions of this Agreement as would enable any Party to proceed with the Merger on such adjusted terms. Each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may, at Parent’s sole discretion, may be proposed by Parent in response ongoing with respect to such Company Superior any Acquisition Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in date hereof. Both Parties agree that its obligation to hold a meeting of its shareholders or to otherwise submit this Agreement to its stockholders shall not be affected by the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)withholding, the Company Board concludes in good faithwithdrawal, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment amendment, change or modification of the terms of this Agreement proposed and irrevocably committed to its approval or recommendation in writing by Parent and capable of acceptance by the Company), that, as applicable accordance with clause (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or above.
(Bc) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal The Parties will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within not later than 24 hours of occurrenceafter its written receipt thereof) notify Parent the other Party in writing of the existence of any proposal, discussion or negotiation received by either Party regarding any Acquisition Proposal, and each Party will promptly communicate to the other Party the identity of the party making such new Company proposal or engaging in such discussion or negotiation and the material terms of any proposal, discussion or negotiation that it may receive regarding any Acquisition Proposal and Proposal, but the Parties shall comply with not be required to disclose the provisions identity of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall party making such proposal or engaging in such circumstance expire on discussion or negotiation if prohibited from doing so pursuant to the later terms of three (3) days after a written confidentiality agreement. Each Party will promptly provide to the Company Board provides written notice of such new Company other Party any information concerning the Party provided to any other Person in connection with any Acquisition Proposal which was not previously provided to Parent and the end any Party. The Parties will keep each other fully informed on a prompt basis of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought relating to be initiated regarding such Company any Acquisition Proposal with, the Company (and of any amendments or proposed amendments to any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any Acquisition Proposal.
(d) Each Party acknowledges that this Section 8.8 was a significant inducement for each Party to enter into this Agreement and the absence of such inquiries, proposals or offers provision would have resulted in either (including any i) a material amendments thereto or any change reduction in the Merger Consideration to be paid to the scope security holders of FCB or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)(ii) a failure to induce Flag to enter into this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Flag Financial Corp)
No Solicitation. (a) The Except as permitted by this Section 6.2, prior to the Closing or the valid termination of this Agreement pursuant to Section 8.1, the Company shallshall not, and shall cause its Subsidiaries to not to, and shall request that cause its Representativesrepresentatives not to, immediately cease directly or indirectly:
(i) solicit, initiate, or encourage the submission or announcement of any communicationsAcquisition Proposal;
(ii) furnish any non-public information regarding the Company to any Person for the purpose of encouraging, or in response to, an Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, to an Acquisition Proposal (except to notify a Company Person that makes any inquiry or offer with respect to an Acquisition Proposal, Proposal of the existence of the provisions of this Section 6.2);
(Biv) subject to Section 5.02(b)adopt, approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understandingacquisition agreement, merger agreement in principle or other Contract with respect to an Acquisition Proposal;
(v) waive or release any Person from, or fail to use reasonable best efforts to enforce, any standstill agreement or other agreement, arrangement or understanding, any standstill provisions of any Contract in each case relating to respect of a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company potential Acquisition Proposal, ; or
(vi) resolve or (E) agree to do any of the foregoing; . provided, however, ifthat, prior notwithstanding anything to the receipt of contrary contained in this Agreement, the Company Stockholder Approval, following the receipt of and its representatives may engage in any such discussions or negotiations and provide any such information in response to a bona fide written Company Acquisition Proposal that made or received after the date hereof, if: (A) such Acquisition Proposal does not arise out of a breach of this Section 6.2; (B) prior to providing any material non-public information regarding the Company to any Third Party in response to an Acquisition Proposal, the Company receives from such Third Party (or there is then in effect with such party) an Acceptable Confidentiality Agreement; and (C) the Company Board (or a committee thereof) determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors and outside legal counseladvisor, is that (I) such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited (II) failure to engage in violation of this Section 5.02(a) made after the date of this Agreementsuch discussions or negotiations and provide any such information would be inconsistent with its fiduciary obligations under applicable Law. Prior to or concurrent with providing any non-public information to such Third Party, the Company may, in response to shall make such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish non-public information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information available to Parent (to the extent such nonpublic non-public information has not been previously so furnished made available by the Company to Parent or its RepresentativesParent’s representatives).
(b) Notwithstanding anything . Prior to the contrary in this Agreement, prior to the receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board may effect a Company Adverse Recommendation Change if (will not be required to enforce, and only if): (I) (A) a written Company will be permitted to waive, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit an Acquisition Proposal that was not solicited in violation of Section 5.02(a) is being made to the Company by Board (or a Third Party and such Company Acquisition Proposal is not withdrawn or committee thereof) if (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIX) the Company Board concludes (or a committee thereof) determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties obligations under applicable Law and (Y) the Company promptly (and in no event later than twenty-four (24) hours) notifies Parent and Merger Sub in writing of such waiver.
(b) The Company shall, and shall cause its representatives to, (i) immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Third Party relating to any Acquisition Proposal and (ii) terminate access by any Person (other than Parent or Merger Sub or any of their respective Affiliates or representatives) to any physical or electronic data room relating to any potential Acquisition Proposal. If the Company receives an Acquisition Proposal after the date hereof, then the Company shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal) notify Parent in writing of such Acquisition Proposal (which notification shall include the identity of the Company Board under applicable Law; providedparty making such proposal and the material terms and conditions thereof), howeverand provide Parent with a copy of such Acquisition Proposal, none and shall thereafter keep Parent reasonably informed of any material change to the terms of such Acquisition Proposal.
(c) Nothing contained in this Section 6.2 or elsewhere in this Agreement shall prohibit the Company, the Company Board (or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize thereof) or their representatives from taking and disclosing to the stockholders of the Company to enter into a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9(f) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or making any Alternative Company Acquisition Agreement unless:
(i) other disclosure or communication required by applicable Law or the rules of any relevant securities exchange; provided that any such disclosure does not contain a Change in Recommendation, and provided, further that any such communication that reaffirms the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment Recommendation shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues deemed not to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Recommendation.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.)
No Solicitation. (a) The Company shallshall not directly or indirectly do, shall cause its Subsidiaries to and shall request ensure that its Representativesno Representative of any of the Acquired Corporations directly or indirectly does, immediately cease any of the following: (i) solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any communicationsAcquisition Proposal or Acquisition Inquiry or take any action that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) subject to Section 4.3(b), furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry or engage in discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and or Acquisition Inquiry; or (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b5.2(c), approve approve, endorse, agree to or recommend, or publicly propose to approve or recommend, a Company recommend any Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, Proposal or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case any Contract contemplating or otherwise relating to a Company any Acquisition Proposal Transaction.
(b) Notwithstanding anything contained in Section 4.3(a) (but subject to the other than an Acceptable Company Confidentiality provisions of this Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt adoption and approval of this Agreement by the Required Stockholder Vote, the Company Stockholder Approvalmay furnish nonpublic information regarding the Acquired Corporations to, following the receipt of or enter into discussions or engage in negotiations with, any Person that has submitted (and not withdrawn) a bona fide written Company Acquisition Proposal that the board of directors of the Company Board determines has reasonably determined in good faith, after consultation with the Company’s outside legal counsel and financial advisors and outside legal counseladvisor, is constitutes a Superior Offer or could reasonably be expected to lead to a Superior Offer if: (A) neither the Company Superior Proposal and that was not solicited nor any Representative of any of the Acquired Corporations shall have materially breached any of the provisions set forth in violation of this Section 5.02(a4.3; (B) made after the date board of this Agreement, directors of the Company maydetermines in good faith, after having considered the advice of its outside legal counsel, that such action is required in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to order for the board of directors of the Company to comply with its fiduciary duties to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition ProposalCompany’s stockholders under applicable Legal Requirements; provided, that (1C) prior to furnishing, or causing to be furnished, concurrent with furnishing any such nonpublic information relating to the Company to to, or entering into discussions or negotiations with, such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into a discussions or negotiations with, such Person; (D) the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent containing nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than as those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), Agreement; and (2E) promptly (but in any event within 24 hours) following concurrent with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and If the Company set forth in Section 5.02(a) and Section 5.02(b), or any Representative of the Company (i) receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in any no event within later than 24 hours) notify Parent in writing hours after receipt of any inquiries, proposals or offers with respect to a Company such Acquisition Proposal that are received by, or any non-public information with regard to Acquisition Inquiry) advise Parent of such Company Acquisition Proposal is requested fromor Acquisition Inquiry, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, including the identity of the Person making or group of Persons making the inquiry, proposal submitting such Acquisition Proposal or offer Acquisition Inquiry and the terms thereof. The Company shall promptly (and in no event later than 24 hours) provide notice to Parent of any material change in the status and terms and conditions of any such inquiriesAcquisition Proposal and any modification or proposed modification thereto.
(d) The Company shall, proposals or offers (and providing copies of shall cause its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all related written inquiriesexisting activities, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations negotiations, if any, with any third party conducted prior to the date hereof with respect to any such inquiries, proposal Acquisition Proposal or offers and Acquisition Inquiry.
(e) The Company shall not release or permit the details release of any material changes Person from, or waive or permit the waiver of any provision of or right under, any “standstill” or similar agreement with respect to any Company Common Stock unless the board of directors of the Company determines in good faith, after having considered the advice of its outside legal counsel, that failure to release would be reasonably likely to result in a breach of its fiduciary duties. The Company either has or shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment in the Company in the last twelve (12) months prior to the status and material date of this Agreement to return to the Company all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations or destroy such confidential information in each case to the extent such third-party is required to do so under the terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)confidentiality agreement.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Zilog Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time Agreement, and except as expressly permitted by Section 1.2(c) or the date of termination of this Agreement in accordance with ARTICLE 9Section 6.4(b), the Company shall not, nor and the Company shall it permit cause any of its Subsidiaries not to, nor and the Company shall it authorize or knowingly permit any of instruct its Representatives to (and shall use reasonable best efforts to cause such Persons acting on its behalf not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), facilitate or knowingly facilitate encourage any inquiry inquiries or indications of interest regarding, or the making or submission of any inquiry, proposal, indication of interest proposal or offer which that constitutes, or that would reasonably be expected to lead to, a Takeover Proposal; (ii) enter into or participate in any discussions (other than to state that the Company Acquisition is not permitted to have discussions) with any Person that has made (A) a Takeover Proposal, with respect to such Takeover Proposal, or (B) subject an inquiry or indication of interest that could reasonably be expected to Section 5.02(b), approve or recommend, or publicly propose lead to approve or recommend, a Company Acquisition Takeover Proposal, with respect to such Takeover Proposal; (Ciii) subject to Section 5.02(b)approve, approve endorse or recommend, recommend any Takeover Proposal; or publicly propose to approve or recommend, or execute or (iv) enter into any letter of intent, memorandum of understandingterm sheet, merger agreement, acquisition agreement, option agreement or other agreement, arrangement similar document or understanding, in each case any Contract contemplating or otherwise relating to a Company Acquisition Proposal any Takeover Transaction.
(other than an Acceptable Company Confidentiality Agreementb) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”Notwithstanding Section 6.4(a), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of until the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, Offer Acceptance Time and following the receipt by the Company of a bona fide written Takeover Proposal, so long as the Company Acquisition Proposal that shall not have breached this Section 6.4 in connection with such Takeover Proposal, (i) the Company Board shall be permitted to participate in discussions regarding such Takeover Proposal solely to clarify the terms of such Takeover Proposal and to enter into an Acceptable Confidentiality Agreement with the party making such Takeover Proposal and (ii) if the Company Board determines in good faith (A) that such Takeover Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (B) after consultation with outside legal counsel, that the failure to take the actions set forth in clauses (x) or (y) below with respect to such Takeover Proposal would be inconsistent with its fiduciary duties under applicable Law, and (C) prior to furnishing any access or non-public information to, or entering into discussions with the Person who has made such Takeover Proposal, Parent receives written notice from the Company of the identity of such Person and of the Company’s intention to furnish access or non-public information to, or enter into discussions with, such Person, then the Company may, in response to such Takeover Proposal, (x) furnish access and non-public information with respect to the Company and any of its Subsidiaries to the Person who has made such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement, so long as any written material non-public information provided under this clause (x) has previously been made available to Parent or is made available to Parent substantially concurrently with the time it is made available to such Person, and (y) participate in discussions and negotiations regarding such Takeover Proposal. Notwithstanding anything to the contrary in this Agreement, the Company Board shall be permitted, to the extent it determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could that failure to take such action would reasonably be expected to lead be inconsistent with its fiduciary duties under applicable Law, to modify, waive, amend or affirmatively release any existing standstill obligations owed by any Person to the Company and its Subsidiaries; provided, however, that concurrently with the waiver, amendment or release of any standstill, the Company shall similarly waive, amend or release Parent’s standstill obligation. Without limiting the foregoing, the Company and its Representatives shall be permitted, at any time prior to the Offer Acceptance Time, and without the requirement of having first received an unsolicited Takeover Proposal, to waive any standstill obligation owed by any Person to the Company to the extent necessary to allow such Person to make a Takeover Proposal. Without limiting the generality of the foregoing, the Company Superior Proposal acknowledges and agrees that was not solicited any violation of or the taking of any action inconsistent with any of the restrictions set forth in violation the Section 6.4 by the Company or any Representative of the Company acting on its behalf, shall be deemed to constitute a breach of this Section 5.02(a6.4 by the Company.
(c) made From and after the date of this Agreement, the Company may, shall promptly (and in response to such Company Acquisition no event later than twenty-four (24) hours after receipt of any Takeover Proposal, any written indication of interest that could reasonably be expected to lead to a Takeover Proposal or any written request for non-public information) advise Parent orally and subject in writing of such Takeover Proposal, such written indication of interest that could reasonably be expected to compliance with Section 5.02(b), furnish information with respect lead to the Company to the Person making a Takeover Proposal or such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic written request for non-public information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, including (A) the information with respect to identity of the Company Superior Proposal that is specified in Section 5.02(c)Person making or submitting such Takeover Proposal, as well as a copy inquiry, indication of such Company Acquisition Proposal interest or request and any related Alternative Company Acquisition Agreement, or (B) the material terms and conditions of such Takeover Proposal and such other facts and circumstances included in reasonable detail such Takeover Proposal as would be material to an evaluation of such Takeover Proposal. After receipt of the Company Intervening Event;
(ii) during the five (5) days following such Takeover Proposal, written notice described in the foregoing clause (i) (inquiry, written indication of interest or such shorter period as is specified in this Section 5.02(b) below)written request, the Company Board shall keep Parent reasonably informed of the status and terms of any such Takeover Proposal, inquiry, indication of interest or request (including notice of all material amendments or proposed material amendments thereto) and provide to Parent the material terms and conditions and such other facts subsequently provided to the Company or its Representatives have negotiated in good faith with Parent as would be material to an evaluation of such Takeover Proposal, written inquiry, written indication of interest or written request.
(to d) As of the extent Parent desires to negotiate) regarding any revisions to the terms date of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)Agreement, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel shall immediately cease and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues cause to be a Company Superior terminated any existing discussions with any Person that relate to any Takeover Proposal or any inquiry or indication of interest that could lead to an Takeover Proposal and shall immediately close and permit no further access to its electronic data room (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Lawbut shall permit Parent continued access). Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the The Company shall promptly (but in any no event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original than five (5) day period described in clause (iiBusiness Days following the execution of this Agreement) above; provided, further, (x) whether or not there is demand that each Person that has heretofore executed a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance confidentiality agreement with Section 9.01, the Company Board shall submit this Agreement for approval or its Representatives with respect to such Person’s consideration of a possible Takeover Proposal (other than agreements that have expired by their terms) to immediately return or destroy all confidential information heretofore furnished by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, Representatives to such Person in connection accordance with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to Person’s confidentiality agreement with the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Company.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
No Solicitation. (a) The Company shallSubject to Section 5.2(b), shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and during the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after period beginning on the date of this Agreement and continuing until the earlier to occur of the Effective Time or or, if earlier, the date of termination of this Agreement in accordance with ARTICLE 9Article VII, the Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor shall it authorize or knowingly permit any of and its and their respective Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly: (i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or providing information) the making or submission of any inquiryinquiries, proposal, indication of interest proposals or offer which constitutes, offers or would any other efforts or attempts that constitute or may reasonably be expected to lead to, a Company any Acquisition Proposal, Proposal or engage in any discussions or negotiations with respect thereto (B) subject other than to Section 5.02(bstate only that they are not permitted to have discussions), or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, discussions or negotiations or (ii) approve or recommend, or publicly propose to approve or recommend, a Company an Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any merger agreement, letter of intent, memorandum of understandingagreement in principle, merger share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other agreement, arrangement or understanding, in each case similar agreement relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) enter into any agreement or agreement in principle requiring Company to abandon, terminate or fail to consummate the transactions contemplated hereby or requiring Company to materially breach its obligations hereunder, or resolve, propose or agree to do any of the foregoing; provided. Company shall immediately cease and (A) cause to be terminated any solicitation, howeverencouragement, ifdiscussion or negotiation with any Person conducted theretofore by Company, prior its Subsidiaries or any of its Representatives with respect to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company any Acquisition Proposal, and subject (B) cause to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with be terminated any access such Person regarding such may have to any physical or virtual data room maintained by or on behalf of Company Acquisition Proposal; provided, that and (1C) prior enforce its right to furnishing, or causing cause to be furnished, returned or destroyed in accordance with the terms of the applicable confidentiality agreement any such nonpublic confidential information relating to the Company provided to such Person, the Person on behalf of Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain or any provision that would prevent the Company from complying with of its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Subsidiaries.
(b) Notwithstanding anything to the contrary contained in Section 5.2(a), if at any time following the date of this Agreement and prior to obtaining the Company Requisite Vote, (i) Company has received a written Acquisition Proposal from a third party that the Board of Directors of Company or the Special Committee believes in good faith to be bona fide, (ii) Company has not knowingly, intentionally or materially breached this Section 5.2, (iii) the Board of Directors of Company or the Special Committee determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (iv) after consultation with its outside counsel, the Board of Directors of Company or the Special Committee determines in good faith that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of Company under applicable Law, then Company may (A) furnish information with respect to Company and its Subsidiaries to the Person making such Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided, that Company (x) will not, and will not allow its Subsidiaries to, and will cause its and their respective Representatives not to, disclose any non-public information to such Person without first entering into an Acceptable Confidentiality Agreement with such Person and (y) will promptly provide or make available to Parent any non-public information concerning Company or its Subsidiaries provided or made available to such other Person which was not previously provided or made available to Parent.
(c) Company shall promptly (within 48 hours) notify Parent in the event that Company or any of its Subsidiaries or its or their respective Representatives (I) receives any Acquisition Proposal, (II) receives any request for information relating to Company or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal, or (III) receives any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. Company shall notify Parent promptly (within 48 hours) of the identity of any Person making any Acquisition Proposal, inquiry or request referenced in (I), (II), or (III) and provide a copy of such Acquisition Proposal, inquiry or request, including the pricing and other material terms and conditions (or, where no such copy is available, a written description of such Acquisition Proposal, inquiry or request), including any material modifications thereto. Company shall promptly (within 24 hours) notify Parent in the event that Company or any of its Subsidiaries or its or their respective Representatives enters into an Acceptable Confidentiality Agreement, including a complete copy of such executed Acceptable Confidentiality Agreement. From and after the date of this Agreement, prior to Company shall keep Parent reasonably informed (orally and in writing) on a reasonably prompt basis (and in any event no later than 24 hours after the receipt occurrence of any changes or developments of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation status of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company any Acquisition Proposal, inquiry or request (including pricing and other material terms and conditions thereof and of any material modification thereto), and any material developments (including through discussions and negotiations), including furnishing copies of any written inquiries, correspondence and draft documentation). Without limiting the foregoing, from and after the date of this Agreement, Company shall promptly (within 24 hours) notify Parent orally and in writing if it determines to begin providing or making available information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.2(b). Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement except with respect to an Acceptable Confidentiality Agreement as permitted or required pursuant to this Section 5.2, and neither Company nor any of its Subsidiaries shall be a party to any agreement that prohibits Company from providing or making available to Parent or Merger Sub any information provided or made available to any other Person pursuant to an Acceptable Confidentiality Agreement. During the period beginning on the date of this Agreement and continuing until the Effective Time, Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement (other than any confidentiality agreement that is not related to an Acquisition Proposal) to which it or any of its Subsidiaries is a party, and Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement.
(d) Notwithstanding anything in Section 5.2(a)(ii) to the contrary, the Board of Directors of Company or the Special Committee may at any time prior to obtaining the Company Requisite Vote, if it determines in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of Company under applicable Law: (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the recommendation of the Board of Directors of Company and the Special Committee that the holders of Common Shares adopt this Agreement and approve the transactions contemplated hereby, including the Merger (the “Company Board Recommendation”); approve, recommend or endorse, or propose publicly to approve, recommend or endorse, any Acquisition Proposal; or make other statements that are reasonably calculated or expected to have the same effect (any of the actions referred to in this clause (x) being a “Change of Board Recommendation”); and/or (y) if Company receives an Acquisition Proposal which the Board of Directors of Company or the Special Committee concludes in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after considering all of the Company’s outside financial advisors adjustments to the terms of this Agreement which may be offered by Parent including pursuant to clause (ii) below, terminate this Agreement and outside legal counselenter into a definitive agreement with respect to such Superior Proposal (provided, that and in such event, Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Lawconcurrently enters into such definitive agreement); provided, however, none that Company may not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or concurrently with such termination Company pays the CompanyTermination Fee pursuant to Section 7.6, and otherwise complies with the provisions of Article VII; and provided further that neither the Board of Directors of Company nor the Special Committee may withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (x) (in the case where the Board of Directors of Company or any committee thereof the Special Committee is considering another Acquisition Proposal) or terminate this Agreement pursuant to the foregoing clause (y) unless (A) Company shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:not have knowingly, intentionally or materially breached this Section 5.2 and (B):
(i) the Company Board provides shall have provided prior written notice to Parent at least five (5) days’ prior written notice days in advance (the “Notice Period”) of its intention to take such action (it being understood that the delivery of with respect to such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change)Superior Proposal, which notice shall includespecify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal), as applicableand shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents, (A) including the information definitive agreement with respect to the Company such Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related (the “Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;”); and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, Company shall, and shall cause its financial and legal advisors to, during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)Notice Period, the Company Board and its Representatives have negotiated negotiate with Parent in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to make such adjustments in the terms and conditions of this Agreement so that maysuch Acquisition Proposal ceases to constitute a Superior Proposal. In the event of any material revisions to a Superior Proposal (including, at Parent’s sole discretionwithout limitation, any revision in price), Company shall be proposed by required to deliver a new written notice to Parent in response and to again comply with the requirements of Section 5.2(d)(i) with respect to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at new written notice except that the end of the Notice Period with respect thereto shall be five (5) day period described days for the first such material revision to a Superior Proposal and three (3) days for each subsequent material revision to a Superior Proposal thereafter.
(e) Company agrees that any violations of the restrictions in this Section 5.2 by any Representative of Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.2 by Company.
(f) Although nothing contained in this Section 5.2 shall prohibit the foregoing clause Board of Directors of Company or the Special Committee from taking and disclosing to the stockholders of Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act, if such statement constitutes a Change of Board Recommendation, then it shall have the effects of a Change of Board Recommendation for all purposes under this Agreement.
(g) Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply.
(h) For purposes of this Agreement, (i) (“Acquisition Proposal” means any inquiry, proposal or such shorter period as specified in this Section 5.02(b) below)offer from any Person or group of Persons other than Parent, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account Merger Sub or their respective Affiliates relating to any adjustment direct or modification indirect acquisition or purchase of a business that constitutes 15% or more of the terms net revenues of this Agreement proposed Company and irrevocably committed to its Subsidiaries, taken as a whole, or 15% or more of any class of equity securities of Company or any of its Subsidiaries, any tender offer or exchange offer that if consummated would result in writing by Parent any Person or group of Persons beneficially owning 15% or more of any class of equity securities of Company or any of its Subsidiaries, or any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues of Company and capable of acceptance by the Company)its Subsidiaries, thattaken as a whole, as applicable (Aii) the Company “Superior Proposal” means any bona fide Acquisition Proposal continues (except that references to be a Company Superior Proposal “15% or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal more” will be deemed to be references to “more than 85%”) that (x) is on terms that the Board of Directors of Company or the Special Committee has determined in its good faith judgment (after consultation with its financial advisor and outside counsel and after taking into account all legal, financial, regulatory and other aspects of the proposal, including the financing terms thereof) is more favorable to Company’s stockholders from a new financial point of view than the transactions contemplated by this Agreement; and (y) which the Board of Directors of Company Acquisition Proposal for purposes or the Special Committee has determined in good faith (after consultation with its financial advisor and outside counsel and after taking into account all legal, financial, regulatory and other aspects of this Section 5.02, and the Company shall promptly proposal) is reasonably capable of being consummated (but in any event within 24 hours taking into account the financability of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretoproposal); provided, however, that the “matching period” set forth above shall in any such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal shall not be deemed to Parent be a “Superior Proposal” if such Acquisition Proposal is subject to a financing contingency and (iii) “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains confidentiality provisions that are in the end of aggregate no less favorable to Company than those contained in the original five (5) day period described in clause (ii) aboveConfidentiality Agreement; provided, further, (x) whether that any such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or not there is a having the effect of prohibiting Company Adverse Recommendation Change, unless from satisfying its obligations under this Agreement has been terminated in accordance with including providing the required information pursuant to Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)5.2.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Francisco Partners II LP), Merger Agreement (Quadramed Corp)
No Solicitation. (a) The Company shallEach of the Sellers agrees that it will not, shall cause its Subsidiaries to and shall request that its Representativesdirectly or indirectly through any officer, immediately cease subsidiary, Affiliate, director, employee, stockholder, representative, agent or other Person, (i) any communicationsseek, discussions initiate, solicit or negotiations with encourage any Person that may be ongoing to make an inquiry or proposal with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (the purchase or other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage acquisition (including by way of a merger, consolidation, stock purchase, asset purchase or share exchange) of a significant portion of the Fastener Business Assets or any substantially similar transaction, in each case other than the transactions contemplated by this Agreement (a "Fastener Business Acquisition Proposal"), (ii) engage in negotiations or discussions concerning a Fastener Business Acquisition Proposal with any Person or group, (iii) disclose any non-public information relating to the Sellers or give access to the properties, employees, books or records of the Sellers or any of its subsidiaries to any Person or group in connection with any Fastener Business Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Fastener Business Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors of the Parent from (a) furnishing information which to any Person that has made a Fastener Business Acquisition Proposal not been previously publicly disseminated)solicited in violation of this Section 5.11 or (b) subject to the other provisions of this Section 5.11, entering into or participating in discussions or negotiations concerning a Fastener Business Acquisition Proposal not solicited in violation of this Section 5.11 so long as, in each case, (x) the Board of Directors of the Parent shall have concluded in good faith, after receiving and considering the advice of its outside legal counsel, that failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors of the Parent to be in breach of its fiduciary responsibilities to its stockholders under applicable Law, and (y) prior to participating in such discussions or negotiations or furnishing any such information, such Seller and the party making such offer agrees to a confidentiality agreement that is no more favorable to the party receiving information than the Confidentiality Agreement and the Buyer is given concurrent or advance written notice thereof. The Board of Directors of the Parent may (A) fail to make, withdraw, or knowingly facilitate any inquiry or modify in a manner adverse to the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected Parent its recommendation to lead to, a Company Acquisition Proposalits stockholders referred to in Section 5.12 hereof, (B) subject take and disclose to Section 5.02(b), approve its stockholders a position contemplated by Rule 14e-2 under the Exchange Act or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, otherwise complying with its disclosure obligations and/or (C) subject take any non-appealable, final action ordered to Section 5.02(b)be taken by the Parent by any court of competent jurisdiction, approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, but in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any only if the Board of Directors of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines Parent shall have concluded in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) action is required in the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:.
(ib) The Parent shall notify the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified Buyer in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at writing no later than the end of the five next business day after receipt thereof of the receipt of any Fastener Business Acquisition Proposal (5) day period described including providing a copy thereof if in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) belowwriting), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel terms and financial advisors (and taking into account any adjustment or modification conditions of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Fastener Business Acquisition Proposal and the Parties identity of the Person making it. The Parent also shall comply with promptly notify the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the Buyer no later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and than the end of the original five (5) next business day period described in clause (ii) above; provided, further, (x) whether of any change to or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior modification of such Fastener Business Acquisition Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition Subject to the obligations provisions of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b5.11(a), the Company (i) Sellers shall, and shall promptly (cause each of their respective subsidiaries and in their respective advisors, employees and other agents to, cease immediately and cause to be terminated any event within 24 hours) notify Parent in writing of any inquiriesand all existing activities, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought negotiations, if any, with any third party conducted prior to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations date hereof with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Fastener Business Acquisition Proposal.
Appears in 2 contracts
Sources: Acquisition Agreement (Fairchild Corp), Acquisition Agreement (Fairchild Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time Closing Date or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Section 10, the Company shall and the Selling Lenders will not, nor shall it will they authorize or permit any of its Subsidiaries totheir respective officers, nor shall it authorize directors, affiliates or knowingly permit employees or any investment banker, attorney or other advisor or representative retained by any of its Representatives to (and shall use reasonable best efforts to cause such Persons not them to), directly or indirectly, (Ai) solicit, initiate initiate, encourage or knowingly encourage induce the making, submission or announcement of any Acquisition Proposal (including by way of furnishing information which has not been previously publicly disseminatedas hereinafter defined), (ii) participate in any discussions or knowingly negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would may reasonably be expected to lead to, a Company any Acquisition Proposal, (Biii) subject engage in discussions with any person with respect to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company any Acquisition Proposal, except as to the existence of these provisions, (Civ) subject to Section 5.02(b)approve, approve endorse or recommendrecommend any Acquisition Proposal, or publicly propose to approve or recommend, or execute or (v) enter into any letter of intentintent or similar document or any contract, memorandum of understanding, merger agreement or other agreementcommitment contemplating or otherwise relating to any Acquisition Proposal, arrangement or understanding, except in each case relating to a the extent any such action is undertaken to comply with any applicable legal requirement. The Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)and the Selling Lenders will immediately cease any and all existing activities, (D) enter into, continue or otherwise participate in any discussions or negotiations regarding with any Company parties conducted heretofore with respect to any Acquisition ProposalProposal to the extent prohibited by the preceding sentence. Without limiting the foregoing, or (E) agree to do it is understood that any violation of the foregoing; providedrestrictions set forth in the preceding two sentences by any officer, however, if, prior to the receipt director or employee of the Company Stockholder Approvalor the Selling Lenders or any investment banker, following the receipt attorney or other advisor or representative of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with or the Company’s outside financial advisors and outside legal counsel, is or could reasonably Selling Lenders shall be expected deemed to lead to be a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a) made after 5.4 by the date of this AgreementCompany or the Selling Lenders. Notwithstanding the foregoing, the Company may, in response to such an unsolicited, written Acquisition Proposal (as defined below) which the Board of Directors of the Company Acquisition Proposaldetermines, in good faith, would reasonably be expected to lead to a Superior Proposal (as hereinafter defined) and subject pursuant to compliance an executed confidentiality agreement with Section 5.02(b)customary terms and conditions at least as restrictive as the confidentiality provisions of the agreement entered into among the parties hereto, (A) furnish information with respect to the Company to the Person making person who made such Company Acquisition Proposal unsolicited proposal and engage in discussions or negotiations with afford such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating person access to the Company to such Personproperties, books, records, officers, and employees of the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with and its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)Subsidiaries, and (2B) promptly (but participate in any event within 24 hours) following furnishing any discussions with, or accept a Superior Proposal from, such nonpublic information to person regarding such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Superior Proposal.
(b) Notwithstanding anything to the contrary in For purposes of this Agreement, prior to "ACQUISITION PROPOSAL" shall mean any offer or proposal from a third party relating to: (A) any acquisition or purchase from the receipt Company by any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a 20% interest in the total outstanding voting securities of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person Subsidiaries or group of Persons making the inquiry, proposal any tender offer or exchange offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, that if consummated would result in any event, within 24 hoursperson or "group" (as defined under Section 13(d) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers Exchange Act and the details rules and regulations thereunder) beneficially owning 20% or more of any material changes to the status and material terms total outstanding voting securities of any such inquiries, proposals or offers (including any material amendments thereto the Company or any change of its Subsidiaries or any merger, consolidation, business combination or similar transaction involving the Company pursuant to which the scope stockholders of the Company immediately preceding such transaction hold less than 80% of the equity interests in the surviving or material terms resulting entity of such transaction; (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition, or conditions thereofdisposition of more than 50% of the assets of the Company; (C) any sale, and including copies transfer or disposition of the Company Debt by the Selling Lenders; or (D) any written inquiries, proposals liquidation or offers, including proposed agreements and material modifications thereto)dissolution of the Company.
Appears in 2 contracts
Sources: Loan Purchase Agreement (Mobilepro Corp), Loan Purchase Agreement (Davel Communications Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Agreement, pursuant to Section 9.01, the Company Parent shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, and shall not authorize or permit any Subsidiary of the Parent or any Representative of the Parent or Parent Subsidiaries directly or indirectly to, (Ai) solicit, initiate initiate, encourage or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)induce the making, submission or knowingly facilitate any inquiry or the making or submission announcement of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)take any action that would, (D) enter intoindividually or in the aggregate, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited an Acquisition Proposal, (ii) furnish any information regarding Parent or any Parent subsidiaries to any Person in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, connection with or in response to such Company an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, and subject to compliance (iii) engage in discussions with Section 5.02(b), furnish information any Person with respect to the Company to the Person making such Company any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company (v) enter into any letter of intent or similar document or any contract contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing herein shall prohibit the Parent's Board of Directors from complying with Rules 14d-9 or 14e-2 under the Exchange Act; and provided, further, that prior to the required Parent stockholder approval, this Section 7.19 shall not prohibit the Parent from furnishing nonpublic information regarding Parent or any Parent Subsidiaries to, or entering into discussions with, any Person in response to an Acquisition Proposal that is submitted to the Parent by such Person (and not withdrawn) if (1) neither the Parent nor any Representative of Parent or any Parent subsidiaries shall have violated in any material respect any of the restrictions set forth in this Section 7.19 (other than Section 7.19(ii) or Section 7.19(iii)), (2) the Acquisition Proposal constitutes a Parent Superior Proposal, (3) the Board of Directors of the Parent concludes in good faith consistent with advice of outside counsel admitted to practice law in the State of Delaware, that, in light of such Parent Superior Proposal, the failure to take such action would likely be inconsistent with the fiduciary duties of the Board of the Directors of the Parent to the Parent's stockholders under applicable law, (4) at least 24 hours prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions with, such Person, the Parent gives the Company enters written notice of the identity of such Person and of the Parent's intention to furnish nonpublic information to, or enter into a discussions with, such Person, and the Parent receives from such Person an executed confidentiality agreement with containing customary limitations on the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation use and disclosure of all nonpublic written and oral information furnished to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in by or on behalf of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)Parent, and (25) promptly (but in any event within 24 hours) following prior to furnishing any such nonpublic information to such Person, the Company Parent furnishes such nonpublic information to Parent the Company (to the extent such nonpublic information has not been previously so furnished by the Parent to the Company). Without limiting the generality of the foregoing (x) the parent acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of Parent or its Representatives)any Parent subsidiaries, whether or not such Representative is purporting to act on behalf of Parent or any Parent subsidiaries, shall be deemed to constitute a breach of this Section 7.19 by the Company, and (y) the Company acknowledges and agrees that the taking of any action permitted by and in accordance with this Section 7.19 shall not constitute a breach of this Agreement.
(b) Notwithstanding anything The Parent shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or any request for nonpublic information) advise the contrary Company orally and in this Agreementwriting of any Acquisition Proposal, any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any Parent subsidiaries (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person prior to the receipt of Closing. The Parent shall keep the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information fully informed with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent status of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)inquiry, indication of interest or request and any modification or proposed modification thereto.
(c) In addition The Parent shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal.
(d) The Parent agrees not to release or permit the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or to waive or permit the waiver of any discussions provision of, any confidentiality, "standstill" or negotiations are sought similar agreement to which Parent or any Parent subsidiaries is a party, and will use its reasonable best efforts to enforce or cause to be initiated regarding enforced each such Company Acquisition Proposal withargument at the request of the Company. The Parent also will promptly request each Person that has executed, within 12 months prior to the Company (or any date of its Representatives)this Agreement, indicating, a confidentiality agreement in connection with its consideration of a possible acquisition transaction or equity investment to return all confidential information heretofore furnished to such notice, the identity Person by or on behalf of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Parent Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Mayan Networks Corp/Ca), Merger Agreement (Ariel Corp)
No Solicitation. (a) The Company From the date of this Agreement and prior to the earlier of the Effective Time or the Termination Date, Del Monte agrees that neither it nor any Del Monte Subsidiary shall, and Del Monte shall cause its Subsidiaries to directors, officers, partners, employees, advisors, controlled Affiliates, representatives, agents and shall request that its Representativesother intermediaries (including any investment banker, immediately cease accountant, legal advisor or other consultant) not to, (i) directly or indirectly, solicit, initiate or encourage any communications, discussions inquiry or negotiations with any Person that may be ongoing with respect to proposal regarding a Company Del Monte Acquisition Proposal, (ii) furnishing provide any non-public information or data to any Person relating to a Del Monte Acquisition Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than Parent, Merger Sub, their respective Representatives and the Company’s RepresentativesConfidentiality Agreement) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, which it or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyis a party, (Aiv) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate engage in any discussions or negotiations regarding any Company concerning a Del Monte Acquisition Proposal, or (Ev) agree otherwise knowingly facilitate any effort or attempt to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of make or implement a bona fide written Company Del Monte Acquisition Proposal that the Company Board determines in good faithor agree to, after consultation with the Company’s outside financial advisors and outside legal counsel, is recommend or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company accept an Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that nothing contained in this Agreement shall prevent Del Monte from, prior to obtaining the “matching period” set forth above shall Share Issuance Approval, engaging in such circumstance expire on the later of three (3) days after the Company Board provides any discussions or negotiations with, or providing any non-public information to, any Person in response to an unsolicited written notice of such new Company bona fide Del Monte Acquisition Proposal by any such Person, if and only to Parent and the end extent that (i) prior to furnishing information to, or requesting information from, a third party which has made a written bona fide Del Monte Acquisition Proposal, the Board of Directors of Del Monte concludes that such Del Monte Acquisition Proposal would reasonably be expected to constitute a Superior Proposal, provided that such third party has executed an agreement with standard confidentiality provisions substantially similar to those contained in the original five (5) day period described in clause Confidentiality Agreement, (ii) above; providedDel Monte's Board of Directors, furtherafter consultation with independent counsel, (x) whether determines in good faith that furnishing such information, or not there engaging in such discussions or negotiations, is a Company Adverse Recommendation Changenecessary for Del Monte's Board of Directors to comply with its fiduciary duties to Del Monte's stockholders under applicable law, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (yiii) Del Monte has complied with its obligations in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal6.4(a), the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company including those set forth in Section 5.02(a) the next sentence. Del Monte shall notify Heinz and Section 5.02(b), the Company (i) shall Spinco promptly (and in any event within 24 hoursby 5:00 p.m., New York time, on the next day) notify Parent in writing after Del Monte shall become aware of the receipt of any such inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public such information with regard to such Company Acquisition Proposal is requested from, or any such discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal or continued with, the Company (Del Monte, any Subsidiary of Del Monte or any of its Representatives)their officers, directors, employees, advisors or agents indicating, in connection with such notice, the identity name of the Person or group of Persons making the inquirysuch Person, proposal or offer and the material terms and conditions of any proposals or offers and, from time to time, whether Del Monte is providing or intends to provide the Person making the Del Monte Acquisition Proposal with access to information concerning Del Monte and thereafter keeps Heinz fully informed of the status and terms of such discussions or negotiations and of any modifications to such inquiries, proposals or offers offers. Del Monte represents that it is not in violation of its obligations under the letter agreement dated as of May 3, 2002, among Heinz, Del Monte and Stockholder (the "Letter Agreement"). Notwithstanding the foregoing, if Del Monte's Board of Directors shall receive a bona fide, unsolicited Del Monte Acquisition Proposal as to which financing is not committed and providing copies if Del Monte's Board of all related written Directors shall determine in good faith that such Del Monte Acquisition Proposal would, but for the question of the financial capability of the proposed acquiror, constitute a Superior Proposal, then in such event Del Monte's Board of Directors and its financial advisor may, for the purpose of determining whether such proposal constitutes a Superior Proposal, conduct such limited inquiries of the proponent of such Del Monte Acquisition Proposal as are necessary for the sole purpose of ascertaining whether the proposed transaction is reasonably capable of being consummated by such proponent so as to constitute a Superior Proposal; provided, however, that Del Monte shall not conduct any further inquiries, proposals discussions or offersnegotiations, or provide any non-public information to such proponent, unless Del Monte's Board of Directors reaches the conclusion that such Del Monte Acquisition Proposal would reasonably be expected to constitute a Superior Proposal, taking into account the financial capability of the proponent thereof.
(b) From the date of this Agreement and prior to the earlier of the Effective Time or the Termination Date, each of Heinz and Spinco agrees that neither it nor any of their respective Subsidiaries shall, and each of Heinz and Spinco shall cause its respective directors, officers, partners, employees, advisors, controlled Affiliates, representatives, agents and other intermediaries (including proposed agreementsany investment banker, accountant, legal advisor or other consultant) not to (i) directly or indirectly, solicit, initiate or encourage any inquiry or proposal regarding a Spinco Acquisition Proposal, (ii) provide any non-public information or data to any Person relating to a Spinco Acquisition Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than the Confidentiality Agreement) to which it or any of its Subsidiaries is a party relating primarily to the Spinco Business, (iv) engage in any discussions or negotiations concerning a Spinco Acquisition Proposal, or (v) otherwise knowingly facilitate any effort or attempt to make or implement a Spinco Acquisition Proposal or agree to, recommend or accept a Spinco Acquisition Proposal and request the return of any confidential information distributed to any such parties in connection with any such activities, discussions or negotiations. Heinz represents that it is not in violation of its obligations under the Letter Agreement.
(c) Prior to receipt of the Share Issuance Approval, if (i) Del Monte has complied with Section 6.4(a) and (ii) thereafter shall keep Parent the Board of Directors of Del Monte (A) reasonably informeddetermines in good faith that a Del Monte Acquisition Proposal constitutes a Superior Proposal (and continues to constitute a Superior Proposal after taking into account any modifications proposed by Heinz and Spinco during any five business day period referred to below) and (B), after consultation with independent counsel, has concluded, in good faith, that it is required to do so in order to comply with its fiduciary duties to the Del Monte Stockholders under applicable law, then, on a reasonably prompt basis (andthe fifth business day following Heinz's and Spinco's receipt of written notice from Del Monte or Del Monte's Board of Directors of their intention to do so, the Board of Directors of Del Monte may withdraw or modify, or propose to withdraw or modify, in a manner adverse to Heinz or Spinco, the Del Monte Board Recommendation (a "Change in the Del Monte Board Recommendation"); provided, that during such five business day period, Del Monte shall be obligated to negotiate in good faith with Heinz and Spinco any event, within 24 hoursmodifications to this Agreement proposed by Heinz and Spinco to result in an equivalent proposal.
(d) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes Notwithstanding anything in this Agreement to the status and material terms contrary, Del Monte or its Board of any such inquiriesDirectors shall be permitted, proposals or offers (including any material amendments thereto or any change to the scope extent applicable, to comply with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to a Del Monte Acquisition Proposal; provided, however, that neither Del Monte nor its Board of Directors nor any committee thereof shall, except as permitted by Section 6.4(c), withdraw or material terms modify, or conditions thereofpropose publicly to withdraw or modify, and including copies of any written inquiriesthe Del Monte Board Recommendation or approve or recommend, proposals or offerspropose publicly to approve or recommend, including proposed agreements and material modifications thereto)a Del Monte Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Del Monte Foods Co), Merger Agreement (Heinz H J Co)
No Solicitation. (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause not authorize or permit any of its Subsidiaries and its Subsidiaries’ Employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to (and shall request that its Representatives, immediately cease not authorize any of them to) directly or indirectly: (i) solicit or initiate, or knowingly facilitate, encourage or induce, any communicationsinquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) subject to Section 5.3(c), participate in any discussions or negotiations with, or furnish any nonpublic information with respect to (x) an Acquisition Proposal or (y) any inquiry or proposal that would be reasonably expected to result in an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 5.3(d)), (iv) withdraw or modify the Board Recommendation in a manner adverse to Parent (except to the extent specifically permitted pursuant to Section 5.3(d)) or (v) except for any confidentiality agreement entered into pursuant to Section 5.3(c)(i), enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby (except to the extent specifically permitted pursuant to Section 5.3(d)). The Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any Person that may be ongoing third parties conducted heretofore with respect to a Company any Acquisition Proposal, (ii) furnishing to any . The Company agrees that it will promptly request each Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters entered into a confidentiality agreement with the Person making such Company in connection with its consideration of an Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure return or destroy all confidential information heretofore furnished to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct by or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt on behalf of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives)Subsidiaries, indicating, in connection with such notice, as the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)case may be.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc), Merger Agreement (Pharmacopeia Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease Until the earlier of (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, the Closing and (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to its terms, the Company Seller shall not, nor and shall it permit not authorize or cause any of its Subsidiaries other Person to, nor shall it authorize take any action to solicit, initiate, seek, knowingly encourage or knowingly permit any of its Representatives respond to (and shall use reasonable best efforts to cause such Persons other than clarifying a third party’s communication or informing a third party that Seller cannot to), directly enter into discussions or indirectly, (Afurnish information) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which constitutesfrom, furnish any confidential information to, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations with, any third party (other than Purchaser or an affiliate thereof designated by Purchaser) regarding any Company Acquisition Proposalacquisition of, any merger or consolidation with or involving, or (E) agree to do any acquisition of all or any material portion of the foregoingassets of (A) Seller (which transaction would include any material portion of the assets of the Business) or (B) the Business or any material part thereof (a “Competing Transaction”); provided, however, if, provided that any acquisition of Seller that contemplates a prior or contemporaneous disposition of the Business to Purchaser shall not be deemed to be a Competing Transaction. If at any time prior to the receipt earlier of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 Closing and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution termination of this Agreement pursuant to its terms, Seller is approached in any manner by a third party concerning a Competing Transaction (provideda “Competing Party”), that Seller shall promptly inform Purchaser regarding such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making contact and furnish Purchaser with a copy of any Company Acquisition Proposal)inquiry or proposal, or, if not in writing, a description thereof, including the name of such Competing Party, and (2) promptly (but in Seller shall keep Purchaser informed of the status and details of any event within 24 hours) following furnishing any such nonpublic information to such Personfuture notices, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent requests, correspondence or its Representatives)communications related thereto.
(b) Notwithstanding anything to Until the contrary in this Agreement, prior to the receipt earlier of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five Closing and (5ii) days’ prior written notice the termination of this Agreement pursuant to its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such noticeterms, update or amendment Purchaser shall not, by itselfand shall not authorize or cause any other Person to, constitute take any action to solicit, initiate, seek, knowingly encourage or respond to (other than clarifying a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal third party’s communication or informing a third party that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or Purchaser cannot there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or furnish information) any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of from, furnish any such inquiriesconfidential information to, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, participate in any eventdiscussions or negotiations with, within 24 hoursany third party regarding any acquisition of Purchaser or any material part thereof, any merger or consolidation with or involving Purchaser which would result in a change of control of Purchaser (as determined under Rule 4350(i) of the status NASDAQ Marketplace Rules), or any acquisition of all or any material portion of the assets of Purchaser; provided that the foregoing shall not apply to discussions or negotiations negotiations, not in violation of Purchaser’s confidentiality obligations, that Purchaser or its representatives may have with respect to any such inquiries, proposal or offers and potential investors for a non-controlling interest in Purchaser which would not constitute a change of control of Purchaser (as determined under Rule 4350(i) of the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications theretoNASDAQ Marketplace Rules).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Smith Micro Software Inc), Asset Purchase Agreement (Pc Tel Inc)
No Solicitation. (a) The Company shallhas, shall and will cause its Subsidiaries Representatives (as defined below) to have, ceased and shall request that its Representativesterminated all existing discussions, immediately cease (i) any communications, discussions or negotiations and communications with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person persons (other than Parent, Merger Sub, Sub or any of their respective Representatives and Subsidiaries or Representatives) with respect to any offer or proposal relating to any transaction or proposed transaction or series of related transactions, other than the transactions contemplated hereby, involving: (A) any consolidation, tender offer, business combination, merger or similar transaction involving the Company or any Company Subsidiary; (B) any recapitalization, restructuring, liquidation or dissolution of the Company or any Company Subsidiary, (C) any issuance by the Company individually or in the aggregate of over fifteen percent (15%) of its equity securities or (D) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or its Subsidiaries (including for this purpose the outstanding equity securities of the Company’s RepresentativesSubsidiaries) any information with respect for consideration equal to a Company Acquisition Proposal and fifteen percent (iii15%) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to more of the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in market value of all of the six (6) months outstanding Shares on the last trading day prior to the date of this AgreementAgreement or fifteen percent (15%) of the consolidated total assets of the Company and the Company Subsidiaries (each of clauses (A)-(D), an “Acquisition Proposal”). From and after Except as provided in this Section 5.2, from the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9or the Effective Time, the Company shall not, nor not and shall it permit any of its Subsidiaries to, nor shall it not authorize or knowingly permit any its officers, directors, employees, investment bankers, attorneys, accountants or other agents or those of its Representatives the Company Subsidiaries (collectively, “Representatives”) to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly (i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)encourage, or knowingly take any action to facilitate any inquiry or the making of, any offer or submission of any inquiry, proposal, indication of interest proposal which constitutes or offer which constitutes, or would is reasonably be expected likely to lead to, a Company to any Acquisition Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating with respect to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (Eiii) agree to do engage in negotiations or discussions with, or provide any non-public information or data to, any person (other than Parent or any of the foregoing; providedits affiliates or Representatives) relating to any Acquisition Proposal or, howeverexcept as set forth in Section 5.2(b), if, prior to the receipt grant any waiver or release under any standstill or other agreement. The Company agrees that any material violations of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines restrictions set forth in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date 5.2 by any of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing its Representatives shall be deemed to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution material breach of this Agreement (providedincluding this Section 5.2) by the Company. Notwithstanding the foregoing, that such agreement does not need to contain nothing contained in this Section 5.2 or any other provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, hereof shall prohibit the Company furnishes such nonpublic information to Parent (or the Company Board of Directors from taking and disclosing to the extent such nonpublic information has not been previously so furnished Company’s shareholders its position with respect to Parent any tender or its Representatives)exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(b) Notwithstanding anything to the contrary set forth in this Agreement, prior to the receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board and its Representatives may effect furnish non-public information regarding the Company to any person pursuant to a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited confidentiality agreement with terms no less favorable, in violation of Section 5.02(a) is made the aggregate, to the Company by a Third Party than those contained in the Confidentiality Agreement and may negotiate and participate in discussions and negotiations with such Company person concerning an Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) if, but only if, such person has, in the case absence of any material violation of this Section 5.2 by the Company, submitted a Company Acquisition Proposal, bona fide written proposal to the Company relating to any such Acquisition Proposal which the Board concludes of Directors determines in good faith, after consultation with its financial advisor, is or is reasonably likely to lead to a Superior Proposal. From and after the date hereof and prior to the Acceptance Time, the Company shall within twenty-four (24) hours notify Parent in writing in the event that the Company or any of the Company Subsidiaries or Representatives receives
(i) any Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of the Company Subsidiaries other than requests for information in the ordinary course of business and, in the good faith judgment of the Company Board of Directors, unrelated to an Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent within such twenty-four (24) hour period with the identity of such Person and a copy of such Acquisition Proposal, inquiry or request (or, where such Acquisition Proposal is not in writing, a description of the material terms and conditions of such Acquisition Proposal, inquiry or request), including any material modifications thereto. The Company shall keep Parent reasonably informed in writing (and in any event no later than twenty-four (24) hours after the occurrence) of any material changes, developments, discussions or negotiations relating to any Acquisition Proposal and provide Parent with copies of all documents received or provided by the Company related to such Acquisition Proposal. Without limiting the foregoing, the Company shall within twenty-four (24) hours notify Parent in writing if the Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any agreement with any person subsequent to the date of this Agreement that would restrict the Company’s outside financial advisors ability to provide such non-public information to Parent, and, if the Company or any Company Subsidiary is a party to any agreement that would prohibit the Company from providing such non-public information to Parent, prior to providing information to, or engaging in discussions or negotiations with, the counterparty to such agreement, the Company will obtain approval from the counterparty to such agreement to allow the Company to provide such information to Parent. The Company shall not, and outside legal counselshall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of the Company Subsidiaries is or becomes a party; provided, however, that such the Company and the Company Subsidiaries may respond to an unsolicited Acquisition Proposal constitutes submitted to the Company by a Company Superior Proposal; party that is bound by a standstill agreement and (III) may decline to enforce or cause to be enforced its rights under such standstill agreement relating to the submission of such unsolicited Acquisition Proposal if, in either case, the Company Board concludes of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change so respond or failure to decline to take such action, as the case may be, would be inconsistent with the fiduciary duties of the Company Board of Directors to the shareholders of the Company under applicable Law; provided. The Company will promptly provide to Parent any non-public information concerning the Company or the Company Subsidiaries provided or made available pursuant to this Section 5.2(b) which was not previously provided or made available to Parent.
(c) Except as set forth herein, howeverneither the Company Board of Directors nor any committee thereof shall (i) withdraw, none of withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, in a manner adverse to the Companytransactions contemplated by this Agreement to Parent or Sub, the Company Board Recommendation, (ii) approve or recommend or propose publicly to approve or recommend, any committee thereof shall make a Company Acquisition Proposal (any action referred to in the foregoing clauses (i) and (ii) being referred to as an “Adverse Recommendation Change and/or authorize the Company to Change”) or (iii) enter into any written agreement providing for the consummation of any Acquisition Proposal (an “Alternative Company Acquisition Agreement”).
(d) Notwithstanding anything in this Agreement unless:
to the contrary, prior to the Acceptance Time, if (i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such noticereceives a written, update or amendment shall not, by itself, constitute bona fide Acquisition Proposal from a Company Adverse Recommendation Change), which notice shall include, as applicablethird party, (Aii) a material breach by the information with respect Company of this Section 5.2 has not contributed to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy making of such Company an Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (Biii) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board Directors concludes in good faith, after consultation with the Company’s outside legal counsel and its financial advisors (and taking into account any adjustment or modification advisors, such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement proposed and irrevocably committed to in writing which have been offered by Parent and capable of acceptance by the Company)(if any) pursuant to this Section 5.2, that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change andBoard of Directors may, if it determines in each casegood faith, after consultation with outside counsel, that the failure to make take such Company Adverse Recommendation Change action would be inconsistent with the fiduciary duties of the Company Board of Directors to the shareholders of the Company under applicable Law. Any amendment or modification , (A) effect an Adverse Recommendation Change and/or (B) terminate this Agreement to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company enter into an Alternative Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) Agreement with respect theretoto such Superior Proposal; provided, however, that the “matching period” set forth above Company shall not terminate this Agreement pursuant to the foregoing clause (B), and any purported termination pursuant to the foregoing clause (B) shall be void and of no force or effect, unless in advance of or substantially concurrently with such circumstance expire on termination the later Company (1) pays the fee required by and pursuant to the terms of Section 8.2 and (2) immediately following such termination enters into a binding definitive agreement providing for such Superior Proposal; and provided, further, that the Company Board of Directors may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or terminate this Agreement pursuant to the foregoing clause (B) unless (1) the Company shall not have breached in any material respect this Section 5.2, (2) the Company shall have provided prior written notice to Parent, at least three (3) business days after in advance (the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end “Notice Period”), of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) Company’s intention to take such action with respect to a Company such Superior Proposal, the Company which notice shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and specify the material terms and conditions of any such inquiriesSuperior Proposal (including the identity of the party making such Superior Proposal), proposals and shall have contemporaneously provided a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal, (3) prior to effecting such Adverse Recommendation Change or offers terminating this Agreement to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and providing copies conditions of all related this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (4) following any negotiation described in the immediately preceding clause (3), such Acquisition Proposal continues to constitute a Superior Proposal. In the event of any material revisions to the terms of the Superior Proposal after the start of the Notice Period, the Company shall be required to deliver a new written inquiriesnotice to Parent and to comply with the requirements of this Section 5.2 with respect to such new written notice, proposals and the Notice Period shall be deemed to have re-commenced on the date of such new notice. Notwithstanding the foregoing, if fewer than three (3) business days remains before the then scheduled expiration date of the Offer, the Notice Period with respect to the Company Board of Directors effecting an Adverse Recommendation Change pursuant to the foregoing clause (A) shall equal twenty-four (24) hours, provided, however, that, in such a circumstance the Notice Period with respect to the Company terminating this Agreement pursuant to the foregoing clause (B) shall remain three (3) business days. Any Adverse Recommendation Change shall not change the approval of the Company Board of Directors for purposes of causing any state takeover statute or offersother state Law to be inapplicable to the transactions contemplated by this Agreement, including proposed agreementseach of the Offer and the Merger or by the Tender and Voting Agreement with the CEO Shareholder. For purposes of this Agreement, a “Superior Proposal” is a bona fide written Acquisition Proposal to acquire at least fifty percent (50%) of the equity securities of the Company or at least fifty percent (50%) of the consolidated total assets of the Company and the Company Subsidiaries, (A) on terms which the Company Board of Directors determines in its good faith judgment (after consultation with its financial and legal advisors) to be more favorable to the holders of Shares than the Offer and the Merger taking into account all financial, regulatory, legal and other aspects of such proposal, and (B) which the Company Board of Directors has determined in its good faith judgment (after consultation with its financial and legal advisors) to be reasonably capable of being completed on the terms proposed, taking into account all financial, regulatory, legal and other aspects of such proposal.
(e) Notwithstanding the foregoing, the Company Board of Directors may withdraw or modify the Company Board Recommendation in the absence of a Superior Proposal if the Company Board of Directors has concluded in good faith, after consultation with its outside counsel, that failure to so withdraw or modify the Company Board Recommendation would be inconsistent with the fiduciary obligations of the Company Board of Directors to the shareholders of the Company under applicable Law, provided, however, that the Company Board of Directors shall not so withdraw or modify the Company Board Recommendation unless the Company has (A) provided to Parent at least three (3) business days prior written notice (or such shorter period as remains prior to the then-scheduled expiration date of the Offer) advising Parent that the Company Board of Directors intends to take such action and specifying the reasons therefore in reasonable detail and (B) during such three (3) business day period, or shorter period, as the case may be, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need or reason for the withdrawal or modification.
(f) The Company shall promptly (but in no event later than two (2) business days after the date of this Agreement) demand that each person that, as of the date of this Agreement, has executed a confidentiality agreement in connection with a potential Acquisition Proposal return or destroy, in each case, to the extent permitted by the terms of the applicable confidentiality agreement, all confidential information heretofore furnished to such individual or entity by or on behalf of the Company or a Company Subsidiary.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s shareholders a position contemplated by Rules 14D-9 and 14e-2(a) promulgated under the Exchange Act or (ii) thereafter shall keep Parent making any disclosures to its shareholders if the Company Board of Directors has reasonably informeddetermined in good faith, on after consultation with outside legal counsel, that failure to do so could be inconsistent with any applicable Law. In addition, it is understood and agreed that, for purposes of this Agreement, a reasonably prompt basis (andfactually accurate public statement by the Company that describes the Company's receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, in or any event“stop, within 24 hourslook and listen” communication by the Company Board of Directors pursuant to Rule 14d-9(f) of the status Exchange Act or any similar communication to the shareholders of any material discussions the Company, shall not constitute an Adverse Recommendation Change or negotiations an approval or recommendation with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC)
No Solicitation. (a) The Company shallSubject to Section 5.12(b) hereof, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From from and after the date of this Agreement until the earlier to occur of the Effective Time Closing or the date of termination of this Agreement in accordance with ARTICLE 9its terms, the Company shall not, neither Oneida nor shall it permit any Person acting on behalf of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)Oneida shall, directly or indirectly, (Aa) solicit, initiate or knowingly encourage respond to discussions or engage in negotiations with any Person (including whether such negotiations are initiated by Oneida or otherwise) or take any other action intended or designed to facilitate the efforts of any Person, other than CBSI, relating to the possible acquisition, recapitalization or other business combination involving Oneida or any of its Subsidiaries (whether by way of furnishing information which has not been previously publicly disseminated)merger, purchase of capital stock, purchase of assets or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreementotherwise) or twenty-five percent (25%) or more of its capital stock or assets (with any such efforts by any such Person, including a Company Superior Proposal (each firm proposal to make such an acquisition, to be referred to as “Alternative Company Acquisition AgreementTakeover Proposal”), (Db) enter intoprovide non-public information with respect to Oneida or any of its Subsidiaries to any Person, continue other than CBSI and its professional advisors or otherwise participate in any discussions or negotiations regarding any Company Acquisition ProposalOneida’s professional advisors, or (Ec) agree enter into an agreement, or a letter of intent or term sheet, with any Person, other than CBSI, providing for a possible Takeover Proposal. If Oneida receives any offer or proposal relating to do any a Takeover Proposal, Oneida shall immediately notify CBSI thereof, including information as to the identity of the foregoing; providedparty making any such offer or proposal and the specific terms of such offer or proposal, howeveras the case may be. Oneida shall immediately cease and cause to be terminated any activities, ifdiscussions, prior or negotiations conducted before the date of this Agreement with any Person other than CBSI with respect to the any Takeover Proposal. Oneida will promptly (and in any event within twenty-four (24) hours) advise CBSI following receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is any communication or inquiry which could reasonably be expected to lead to a Company Superior Takeover Proposal and that was not solicited in violation the substance thereof (including any terms and conditions discussed and the identity of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person party making such Company Acquisition Proposal communication or inquiry) and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making will promptly advise CBSI of any Company Acquisition Proposal)related developments, discussions and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)negotiations on a current basis.
(b) (i) Notwithstanding anything to the contrary contained in this Agreement, Section 5.12(a) prior to the receipt Closing or the termination of the Company Stockholder Approvalthis Agreement in accordance with its terms, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in extent the case Board of a Company Acquisition ProposalDirectors of Oneida determines, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, actions would constitute a Company Adverse Recommendation Changeviolation of its fiduciary duties under applicable law, Oneida may: participate in discussions or negotiations with, and, subject to the requirements of Section 5.12(c), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any furnish non-public information with regard information, and afford access to such Company Acquisition Proposal is requested fromthe properties, books or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (records of Oneida or any of its RepresentativesSubsidiaries, to any Person after such Person has delivered to Oneida in writing an unsolicited bona fide Takeover Proposal with respect to Oneida or any of its Subsidiaries (which has not been withdrawn) which the Board of Directors of Oneida in its good faith judgment determines, after reasonable inquiry and consultation with its financial advisor (i) would be reasonably likely to result in a transaction more favorable than that contemplated by this Agreement to the shareholders of Oneida (which judgment must be reasonable), indicatingand (ii) that the Person making such Takeover Proposal is financially capable of consummating such Takeover Proposal or that the financing necessary to consummate such Takeover Proposal, to the extent required, is then committed or is capable of being obtained by such Person (a “Superior Proposal”). In addition, notwithstanding the provisions of Section 5.12(a) above, in connection with a submitted, written bona fide Takeover Proposal or potential Takeover Proposal, Oneida shall refer any third party to this Section 5.12 or make a copy of this Section 5.12 available to such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)third party.
Appears in 2 contracts
Sources: Merger Agreement (Community Bank System, Inc.), Merger Agreement (Oneida Financial Corp.)
No Solicitation. (a) The Company shall, shall and shall cause its Subsidiaries Representatives to and shall request that its Representatives, immediately cease (i) any communicationsand all existing discussions, discussions communications or negotiations with any Person that may be ongoing conducted heretofore with respect to a any Acquisition Proposal.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company shall not, nor shall it authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to an Acquisition Proposal, (ii) furnishing furnish to any Person (other than Parent, Merger Sub or any esignees of Parent or Merger Sub, their respective Representatives and ) any non-public information concerning the Company’s Representativesbusiness, assets (tangible and intangible) any information or properties with respect the intent to a Company induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest proposal or offer which constitutes, or other communication that would reasonably be expected to lead to, a Company to an Acquisition Proposal, (Biii) subject to Section 5.02(b), approve participate or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, engage in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding with any Company Person with respect to an Acquisition Proposal, or (Eiv) agree negotiate, approve, recommend or enter into any Contract with respect to do any Acquisition Transaction. The Company agrees that any material violation of the restrictions set forth in this Section 5.2(b) by it or any of its Representatives who is (x) a director or officer of the foregoing; providedCompany or any Subsidiary, however(y) a senior-level employee (i.e., ifmanaging director (or similar title) or above) of any financial advisor retained by the Company or (z) a partner of any law firm retained by the Company or any other Person acting with the actual authority of the Company (such Representatives and Persons collectively, “Senior Representatives”) shall be deemed a material breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary set forth in this Section 5.2, prior to the receipt of Effective Time, the Company Stockholder ApprovalBoard, following may, directly or indirectly through the receipt Company’s Representatives, (i) participate or engage in discussions or negotiations with any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made a bona fide fide, written Company and unsolicited Acquisition Proposal and that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counselAfter Consultation, is either constitutes or could would reasonably be expected to lead to a Company Superior Proposal and Proposal, and/or (ii) furnish to any Person that was not solicited has, in the absence of any material violation of this Section 5.02(aSection 5.2(b) by the Company, made after an Acquisition Proposal of the date of this Agreement, the Company may, type referred to in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(bclause (i), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic non-public information relating to the Company or any of its Subsidiaries and/or afford to any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made such Personan Acquisition Proposal access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company enters into or any of its Subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement with that is no less favorable to the Person making such Company Acquisition Proposal (an “Acceptable Company Company, in the aggregate, than the Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (; provided, however, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposalany action taken pursuant to the preceding clauses (i) or (ii), the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIA) the Company Board concludes shall have determined in good faith, after consultation with the Company’s outside legal counsel, faith After Consultation that the failure to make a Company Adverse Recommendation Change take such action would reasonably be expected to be inconsistent with the fiduciary duties of directors of a Delaware corporation under Delaware Law, (B) within twenty four (24) hours following such determination, the Company Board under applicable Law; providedgives Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal including any modifications thereto (unless such Acquisition Proposal is in written form, however, none in which case the Company shall give Parent a copy thereof including any modifications thereto) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall in no event begin providing such information to such Person prior to providing such notice to the Parent. For purposes of this Section 5.2, it is hereby clarified that the fact that the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated previously engaged in good faith any discussions or negotiations with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed a Person shall not prevent by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company itself an Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make made by such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Person from being considered unsolicited.
(cd) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(bSection 5.2(b), the Company (i) shall promptly (and in any event within 24 hourstwenty-four (24) hours from the time at which the Company becomes aware) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, if the Company (becomes aware of the receipt by the Company or any of its RepresentativesRepresentatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (unless such Acquisition Proposal, request or inquiry is in written form, in which case the Company shall give Parent a copy thereof), indicating, in connection with such notice, and the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiriesAcquisition Proposal, proposals request or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter inquiry. The Company shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) informed of the terms and the status of any material discussions such Acquisition Proposal, request or negotiations with respect to inquiry on a prompt basis, and in any such inquiries, proposal or offers and event no later than twenty-four (24) hours after the details occurrence of any material changes to any such Acquisition Proposal (including the status terms and material terms conditions thereof and of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofmodification thereto), and any developments, discussions and negotiations concerning any such Acquisition Proposal, including furnishing copies of any written inquiries, proposals correspondence and draft documentation, and written summaries of any material oral inquiries or offersdiscussions.
(e) The Company shall not, including proposed agreements and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide to the Parent the information described in this Section 5.2, and neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the information described in this Section 5.2 to the Parent. The Company (A) except to the extent inconsistent with the fiduciary duties of directors of a Delaware corporation under applicable Delaware Law, shall not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill provision in any confidentiality agreement to which it or any of its Subsidiaries is or becomes a party (other than as occurs in accordance with the terms of any such standstill provision in effect as of the date hereof), and (B) shall, and shall cause its Subsidiaries to, use reasonable best efforts to enforce such standstill provisions if it becomes aware of any material modifications breach of any such standstill provision by the party subject thereto).
(f) The Company shall promptly (but in no event later than two (2) Business Days after the date of this Agreement) (i) demand that each individual or entity that has executed a confidentiality agreement since February 27, 2014 in connection with any potential Acquisition Proposal return (or destroy, to the extent permitted by the terms of the applicable confidentiality agreement) all confidential information furnished to such individual or entity by or on behalf of the Company or any of its Subsidiaries in accordance with the terms of the applicable confidentiality agreement, and (ii) revoke or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company or its Subsidiaries in connection with an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
No Solicitation. (a) The During the Pre-Closing Period, the Company shallshall not, directly or indirectly, and the Company shall cause ensure that its Subsidiaries to and shall request that its Representativesthe respective Representatives of the Acquired Corporations do not, immediately cease directly or indirectly:
(i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any communications, Acquisition Proposal or Acquisition Inquiry;
(ii) furnish any nonpublic information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry;
(iii) engage in discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and or Acquisition Inquiry;
(iiiiv) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement except in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not toSection 8.1(i), directly approve, endorse or indirectly, recommend any Acquisition Proposal or Acquisition Inquiry; or
(Av) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminatedexcept in accordance with Section 8.1(i), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case any Contract contemplating or otherwise relating to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoingTransaction; provided, however, if, that prior to the receipt approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person in response to an Acquisition Proposal submitted to the Company by such Person (and not withdrawn) that the Company’s Board of Directors in good faith believes is reasonably likely to result in a Superior Offer by such Person (and not be withdrawn) if: (A) neither the Company nor any Representative of any of the Acquired Corporations shall have breached any of the provisions set forth in this Section 4.3; (B) the board of directors of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines concludes in good faith, after consultation with having taken into account the Company’s outside financial advisors and advice of its outside legal counsel, that such action is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited required in violation order for the board of this Section 5.02(a) made after the date directors of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to comply with its fiduciary obligations to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition ProposalCompany’s shareholders under applicable law; provided, that (1C) prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions or negotiations with, such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into a discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an including nondisclosure provisions, use restrictions, non-solicitation provisions and “Acceptable Company Confidentiality Agreement”standstill” provisions) that (x) does not contain any provision that would prevent at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains as the provisions that in the aggregate are no less restrictive on such Person than those contained in of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), Agreement; and (2D) promptly (but in any event within 24 hours) following prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished by the Company to Parent Parent). Without limiting the generality of the foregoing, the Company shall ensure that no affiliate or its Representatives)Representative of any of the Acquired Corporations takes any action inconsistent with any of the provisions set forth in the preceding sentence, and the Company acknowledges and agrees that any breach of any of the provisions set forth in the preceding sentence by any affiliate or Representative of any of the Acquired Corporations, whether or not such affiliate or Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. For purposes of this Agreement, an affiliate or Representative of an Acquired Corporation, or any other Person, shall be deemed to have breached a provision of this Section 4.3 if such affiliate, Representative or other Person takes any action that would constitute a breach by the Company of such provision were the Company to take such action directly.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company If any Acquisition Proposal that was not solicited in violation of Section 5.02(a) or Acquisition Inquiry is made to the Company or submitted by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) Person during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)Pre-Closing Period, the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and then the Company shall promptly (but and in any no event within 24 later than 48 hours after receipt of occurrencesuch Acquisition Proposal or Acquisition Inquiry) notify advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent informed with respect to: (i) the status of any such new Company Acquisition Proposal or Acquisition Inquiry; and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether the status and terms of any modification or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)proposed modification thereto.
(c) In addition The Company shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(d) The Company agrees not to release or permit the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or to waive or permit the waiver of any discussions provision of, any confidentiality, non-solicitation, no hire, “standstill” or negotiations are sought similar Contract to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and will cause each such agreement to be initiated regarding such enforced to the extent requested by Parent. The Company Acquisition Proposal with, also shall promptly request each Person that has executed a confidentiality or similar agreement within the Company (or any of its Representatives), indicating, last 12 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in any Acquired Corporation to return to the Acquired Corporations all confidential information heretofore furnished to such notice, the identity Person by or on behalf of any of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Shopping Com LTD), Merger Agreement (Ebay Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned Subject to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date remainder of this Agreement. From and after Section 5.02, from the date of this Agreement until the earlier to occur of the Effective Time or and the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article VII, the Company shall not, nor not and shall it not cause or permit any of its Subsidiaries to, nor and shall it not authorize or knowingly permit any of its Representatives or its Subsidiaries’ Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition ProposalProposal (as defined below), (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, arrangement or understanding, in each case relating similar agreement with respect to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)Proposal, (Diii) enter intosolicit, continue knowingly encourage, participate, engage in or otherwise participate assist in any manner any discussions or negotiations regarding any Company Acquisition Proposalregarding, or furnish to any person (Eother than Parent or its Representatives) agree any information with respect to, or knowingly take any other action to do facilitate any inquiries or the making of the foregoing; providedany proposal that constitutes, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could may reasonably be expected to lead to, any Acquisition Proposal or (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, render the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to the Person making such Company any Acquisition Proposal and engage or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in discussions the Company Rights Agreement) under the terms of the Company Rights Agreement or negotiations with such Person regarding such allow the Company Acquisition Proposal; provided, that (1) Rights to expire prior to furnishing, or causing their expiration date (all such actions in this subclause (A) are collectively referred to be furnished, any such nonpublic information relating to the as “Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality AgreementRights Agreement Modifications”) that or (xB) does not contain exempt any provision that would prevent person (other than Parent or Merger Sub) from the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive restrictions on such Person than those “business combinations” contained in Section 203 of the Confidentiality Agreement DGCL (or any similar provision) or otherwise cause or permit such restrictions not to apply (all such actions in this subclause (B) are collectively referred to as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its RepresentativesDGCL 203 Modifications”).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder Merger Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a breach of this Section 5.02, if the Company Board determines in good faith after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company Board may effect (x) enter into a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company customary confidentiality agreement with the person making such Acquisition Proposal that was not solicited in violation of Section 5.02(acontaining terms and provisions (i) is made substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposalthan, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Confidentiality Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the delivery Company or having the effect of such notice and any amendment or update thereto and prohibiting the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Changefrom satisfying its obligations under this Section 5.02), which notice shall include(y) furnish, as applicableand authorize and permit its Representatives to furnish, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of and its Subsidiaries to the person making such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following negotiations with such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board person and its Representatives have negotiated in good faith with regarding any such Acquisition Proposal.
(c) The Company shall notify Parent (to the extent Parent desires to negotiate“Notice of Proposal”) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period promptly as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors practicable (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours hours) after receipt by the Company or any of occurrence) notify its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of the Original Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such new Company Acquisition Proposal discussions or negotiations and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; providedany modifications to such inquiries, howeverproposals, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent offers or requests, and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify provide to Parent in writing a copy of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers all written (and providing copies a summary in reasonable detail of all related written oral) inquiries, proposals or offers, including proposed agreementsrequests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or enter into, 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 constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Merger Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that taking such action is necessary to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to make an Adverse Recommendation Change, or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to Section 7.01(c), or make Company Rights Agreement Modifications or DGCL 203 Modifications with respect to the acquisition of Company Common Stock pursuant to such Superior Proposal; provided, however, that the Company Board shall not make an Adverse Recommendation Change, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the end of such period the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) thereafter In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Section 5.02 shall keep Parent reasonably informed, on prohibit the Company from taking and disclosing to the Company Stockholders a reasonably prompt basis (andposition contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company Stockholders if, in the good faith judgment of the Company Board, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change or take any eventof the actions referred to in clause (iv) of Section 5.02(a) except, within 24 hoursin each case to the extent permitted by Section 5.02(e).
(g) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person or group (as such term is defined under Section 13(d) of the status Exchange Act) (other than Parent or Merger Sub) relating to (i) any direct or indirect acquisition or purchase of more than 15% of the outstanding shares of Company Common Stock; (ii) any material discussions tender offer or negotiations with respect exchange offer that, if consummated, would result in any person or group beneficially owning more than 15% of the outstanding shares of Company Common Stock; (iii) the direct or indirect acquisition of assets of the Company that generate or constitute 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company or any Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company; and (v) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or any Subsidiary of the Company (including for this purpose the outstanding equity securities of the Subsidiaries of the Company) for consideration equal to any such inquiries, proposal 15% or offers and more of the details aggregate fair market value of any material changes all of the shares of Company Common Stock outstanding on the date prior to the status and material terms of any such inquiriesdate hereof, proposals or offers (including any material amendments thereto or any change to but in each case other than the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Article VIII, except as specifically permitted in Sections 6.03(d), 6.03(f) or 6.03(g)(ii), the Company shall not, nor shall it authorize or permit any of its Subsidiaries or its or their Representatives to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, : (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)any inquiries, offers or proposals that constitute, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would are reasonably be expected likely to lead to, any Acquisition Proposal; (ii) engage in discussions or negotiations with, furnish or disclose any information or data relating to the Company or any of its Subsidiaries to, or in response to a request therefor, give access to the properties, assets or the books and records of the Company or its Subsidiaries to, any Person that has made or, to the Knowledge of the Company, may be considering making any Acquisition Proposal or otherwise in connection with an Acquisition Proposal; (iii) grant any waiver or release under any standstill or similar contract with respect to the Shares, any Company Equity Securities or any properties or assets of the Company or its Subsidiaries; (iv) withdraw, modify or amend the approval or recommendation of the Offer, the Merger or this Agreement by the Board of Directors of the Company; (v) approve, endorse or recommend any Acquisition Proposal; (vi) enter into any agreement in principle, arrangement, understanding or contract relating to any Acquisition Proposal; or (vii) take any action to exempt or make not subject to the provisions of Section 203 of the DGCL or any other state takeover statute or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any Person (other than Parent and its Subsidiaries) or any action taken thereby, which Person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom.
(b) The Company shall, and shall cause each of its Subsidiaries and instruct its Representatives to, immediately cease any existing solicitations, discussions, negotiations or other activity with any Person being conducted with respect to any Acquisition Proposal on the date hereof. The Company shall promptly inform its Representatives who have been engaged or are otherwise providing assistance in connection with the transactions contemplated by this Agreement of the Company’s obligations under this Section 6.03. Without limiting the foregoing, the Company agrees that any breach of the restrictions set forth in this Section 6.03, including any failure of such Representatives to comply with any instructions referred to above, by any of such Representatives or any Affiliate or Subsidiary of the Company shall be deemed to be a breach by the Company of this Section 6.03.
(c) The Company shall notify Parent as soon as practicable (but in any event within 24 hours) after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an Acquisition Proposal, (Bii) subject any request for information relating to Section 5.02(b)the Company or any of its Subsidiaries or (iii) any request for access to the properties, approve assets or recommend, the books and records of the Company or publicly propose its Subsidiaries that the Company reasonably believes is reasonably likely to approve or recommendlead to an Acquisition Proposal. The Company shall provide Parent promptly with the identity of such Person, a Company detailed description of such Acquisition Proposal, (C) subject to Section 5.02(b)indication or request and, approve or recommendif applicable, or publicly propose to approve or recommend, or execute or enter into a copy of such Acquisition Proposal. The Company shall keep Parent fully informed on a reasonably current basis of the status and details of any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company such Acquisition Proposal, indication or request.
(Ed) agree to do any of Notwithstanding the foregoing; provided, however, if, prior to the receipt Acceptance Date, nothing in this Agreement shall prevent the Company or its Board of Directors from:
(i) engaging in discussions or negotiations with, or furnishing or disclosing any information relating to, the Company or any of its Subsidiaries or, in response to a request therefor, giving access to the properties, assets or the books and records of the Company Stockholder Approvalor any of its Subsidiaries to, following the receipt of any Person who has made a bona fide written Company and unsolicited Acquisition Proposal made after the date hereof if the Board of Directors determines that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, but only so long as (x) the Company Board determines of Directors has (A) acted in good faithfaith and by a majority of the members of its entire Board of Directors, (B) determined, after consultation with the Company’s outside its legal and financial advisors advisors, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (C) determined, after consultation with its outside legal counsel, that the failure to take such action is or could reasonably be expected likely to lead result in a breach of its fiduciary obligations to a the stockholders of the Company Superior Proposal under applicable Laws (in the case of (B) and that was not solicited in violation of this Section 5.02(a) made after (C), taking into account any adjustments to the date terms and conditions of this Agreement, the Company may, Offer or the Merger offered in writing by Parent in response to such Company Acquisition Proposal), and subject to compliance with Section 5.02(b), furnish information with respect to (y) the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1A) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the such Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation on terms and conditions no more favorable to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement and (B) concurrently discloses or makes available the same information to Parent as it makes available to such Person in effect immediately prior accordance with Section 6.03(e); and
(ii) subject to compliance with Section 6.03(d)(i), entering into a definitive agreement with respect to a Superior Proposal (and taking any action required under Section 203 of the execution of this Agreement (provided, that DGCL or any other state takeover Law in connection with such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Superior Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously only so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) long as (A) a written Company Acquisition Proposal that was not solicited the Board of Directors, acting in violation of Section 5.02(a) is made to the Company good faith and by a Third Party and majority of the members of the entire Board of Directors, has approved such Company Acquisition Proposal is not withdrawn or definitive agreement, (B) there the Board of Directors has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faithdetermined, after consultation with the Company’s outside financial advisors and its outside legal counseland financial advisors, that such Company bona fide written and unsolicited Acquisition Proposal constitutes a Company Superior Proposal; and , (IIIC) the Board of Directors of the Company Board concludes in good faithhas determined, after consultation with the Company’s its outside legal counsel, that the failure to make take such action is reasonably likely to result in a Company Adverse Recommendation Change would be inconsistent with breach of its fiduciary obligations to the fiduciary duties stockholders of the Company Board under applicable Law; providedLaws and (D) the Company terminates this Agreement pursuant to, however, none and after complying with all of the Companyprovisions of, Section 8.01(f).
(e) If the Company or any of its Subsidiaries or its or their Representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal involving the Company and the Company is permitted to provide such Person with information pursuant to this Section 6.03, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, the information provided to such Person concurrently with its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent.
(f) The Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize of Directors of the Company shall not (i) approve, endorse or recommend, or propose to approve, endorse or recommend, any Acquisition Proposal or (ii) enter into any Alternative agreement in principle or understanding or a contract relating to an Acquisition Proposal, unless the Company Acquisition terminates this Agreement unless:pursuant to, and after complying with all of the provisions of, Section 8.01(f).
(g) Notwithstanding the foregoing, (i) the Board of Directors of the Company Board provides Parent at least five (5) days’ prior written notice shall be permitted to disclose to the stockholders of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute Company a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information position with respect to the Company Superior an Acquisition Proposal that is specified in Section 5.02(crequired by Rule 14e-2(a), as well as a copy Item 1012(a) of such Company Acquisition Proposal Regulation M-A or Rule 14d-9 promulgated under the Exchange Act and any related Alternative Company Acquisition Agreement, or (Bii) the facts and circumstances in reasonable detail Board of Directors of the Company Intervening Event;
(ii) during may withdraw, modify or amend its recommendation of the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)Offer, the Company Board Merger and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faithany time if it determines, after consultation with the Company’s its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each casecounsel, that the failure to make take such Company Adverse Recommendation Change would be inconsistent with action is reasonably likely to result in a breach of its fiduciary obligations to the fiduciary duties stockholders of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Laws.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
No Solicitation. (a) The Company Each of Homology and Q32 agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall cause it or any of its Subsidiaries to and shall request that authorize any of its RepresentativesRepresentatives to, immediately cease directly or indirectly: (i) solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any communicationsAcquisition Proposal or Acquisition Inquiry or take any action otherwise inconsistent with past practice that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry, (ii) furnish any non-public information regarding such Party to any Person (other than Q32 or Homology) in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, (iii) engage in discussions or negotiations with any Person that may be ongoing with respect to a Company any Acquisition ProposalProposal or Acquisition Inquiry, (iiiv) furnishing to approve, endorse or recommend any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b5.9), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (Cv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement any Contract contemplating or understanding, in each case otherwise relating to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, Transaction or (Evi) agree publicly propose to do any of the foregoing; provided, however, ifthat, notwithstanding anything contained in this Section 5.3(a) and subject to compliance with this Section 5.3(a), prior to the receipt approval of this Agreement by Homology’s stockholders (i.e., the Company Required Homology Stockholder ApprovalVote), following the receipt of Homology may furnish non-public information regarding Homology and its Subsidiaries to, and enter into discussions or negotiations with, any Person in response to a bona fide written Company Acquisition Proposal that by Homology which the Company Homology Board determines in good faith, after consultation with the CompanyHomology’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishingconstitutes, or causing is reasonably likely to be furnishedresult in, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if Superior Offer (and only is not withdrawn) if): (I) : (A) a written Company Acquisition Proposal that was not solicited neither Homology nor any Representative of Homology shall have breached this Section 5.3(a) in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or any material respect, (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Homology Board concludes in good faith, after consultation with faith based on the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s advice of outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Homology Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (AC) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well promptly as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, possible after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hoursforty-eight hours of) notify Parent initially furnishing any such non-public information to, or entering into discussions with, such Person, Homology gives Q32 written notice of the identity of such Person to Q32, and of Homology’s intention to furnish non-public information to, or enter into discussions with, such Person, (D) Homology receives from such Person an executed Acceptable Confidentiality Agreement and (E) as promptly as possible after (and in any event within forty-eight hours of) furnishing any such non-public information to such Person, Homology furnishes such non-public information to Q32 (to the extent such information has not been previously furnished by Homology to Q32). Notwithstanding anything to the contrary set forth in this Agreement, Homology and its Representatives may, in any event (without the Homology Board having to make a determination in clause (B) of the preceding sentence), contact any person to (i) seek to clarify and understand the terms and conditions of any Acquisition Proposal made by such Person solely to determine whether such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Offer and (ii) inform such Person that has made or, to the knowledge of Homology is considering making an Acquisition Proposal. Without limiting the generality of the foregoing, Homology acknowledges and agrees that, in the event any Representative of Homology takes any action that, if taken by Homology, would constitute a breach of this Section 5.3(a) by Homology, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.3(a) by Homology for purposes of this Agreement.
(b) If any Party or any Representative of such Party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then such Party shall promptly (and in no event later than one Business Day after such Party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other Party orally and in writing of any inquiriessuch Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, proposals and provide a copy of the Acquisition Proposal or offers Acquisition Inquiry, of if the Acquisition Proposal or Acquisition Inquiry is not written, the terms thereof). Such Party shall keep the other Party reasonably informed with respect to a Company the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or material proposed modification thereto. In addition to the foregoing, each Party shall provide the other Party with at least forty-eight hours written notice of a meeting of its board of directors (or any committee thereof) at which its board of directors (or any committee thereof) is reasonably expected to consider an Acquisition Proposal or Acquisition Inquiry it has received.
(c) Each Party shall immediately cease and cause to be terminated any existing discussions, negotiations and communications with any Person that are received by, relate to any Acquisition Proposal or Acquisition Inquiry as of the date of this Agreement and request the destruction or return of any non-public information with regard provided to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Person.
Appears in 2 contracts
Sources: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)
No Solicitation. (a) The Company shallSubject to the provisions of this Section 5.22, shall Keystone will not, and will cause its Subsidiaries to not to, and shall request that will cause Keystone’s and its RepresentativesSubsidiaries’ respective officers, immediately cease directors, employees, Affiliates, agents and representatives not to, directly or indirectly, (i) initiate or solicit or knowingly encourage any communications, discussions or negotiations with any Person that may be ongoing inquiries with respect to a Company to, or the making of, any Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyexcept as permitted below, (A) solicit, initiate engage in negotiations or knowingly encourage (including by way of furnishing discussions with or provide any information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead data to, a Company any Person relating to an Acquisition Proposal, (B) subject to Section 5.02(b)approve, approve endorse or recommend, or propose publicly propose to approve approve, endorse or recommend, a Company any Acquisition Proposal, or (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understandingagreement in principle, merger agreement, acquisition agreement or other agreement, arrangement or understanding, in each case similar agreement relating to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (confidentiality agreement contemplated by Section 5.22(b)). Keystone shall, and shall cause each an “Alternative Company Acquisition Agreement”)of its officers, directors, employees, Affiliates, agents and representatives to, (Di) enter intoimmediately cease any solicitations, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such any Person regarding such Company (other than TCBX) conducted heretofore with respect to any Acquisition Proposal and promptly request return or destruction of confidential information related thereto, (ii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its officers, directors, employees, Affiliates, agents and representatives is a party and (iii) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the receipt approval of the Company Stockholder ApprovalKeystone shareholders, in the Company Board may effect event that Keystone receives a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company bona fide Acquisition Proposal that was is not solicited received in violation of this Section 5.02(a) is made to the Company by a Third Party 5.22, Keystone and its Board may participate in discussions or negotiations with, or furnish any information to, any Person making such Company Acquisition Proposal is not withdrawn and its agents and representatives or (B) there has been a Company Intervening Event; (II) potential sources of financing that need to be involved in the case of a Company Acquisition Proposal, the Company such discussion if Keystone’s Board concludes determines in good faith, after consultation with the Company’s outside its counsel and financial advisors and outside legal counseladvisor, that such Company Person is reasonably likely to submit to Keystone a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the board of directors’ fiduciary duties; provided, however, that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, Keystone shall have entered into a confidentiality agreement with such Person on terms that are substantially similar to the confidentiality provisions of the Confidentiality Agreement and that any nonpublic information concerning Keystone and its Subsidiaries provided to such Person, to the extent not previously provided to TCBX, is promptly provided to TCBX. In addition, nothing herein shall restrict Keystone from complying with its disclosure obligations with regard to any Acquisition Proposal constitutes under applicable Law.
(c) Keystone will promptly (and in any event within 48 hours) notify TCBX of the receipt by Keystone of any Acquisition Proposal, which notice shall include the material terms of and identity of the Person(s) making such Acquisition Proposal. Keystone will (subject to the Keystone Board’s fiduciary duties) keep TCBX reasonably informed of the status and material terms and conditions of any such Acquisition Proposal and of any material amendments or proposed material amendments thereto.
(d) Keystone’s Board may, at any time prior to obtaining the approval of the Keystone shareholders, (i) approve, endorse or recommend a Company Superior Proposal; and Proposal or enter into a definitive agreement with respect to a Superior Proposal or (IIIii) modify or amend in a manner adverse to TCBX or withdraw the Company Keystone Recommendation ((i) or (ii) above being referred to as a “Change in Recommendation”), provided that (x) prior to such Change in Recommendation, Keystone’s Board concludes shall determine, in good faith, faith (after consultation with the Company’s outside legal its counsel), that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with the directors’ fiduciary duties of the Company Board under applicable Law; providedLaw and (y) such Change in Recommendation is in connection with a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account any action taken by TCBX pursuant to Section 5.22(e).
(e) Notwithstanding anything to the contrary contained in this Agreement, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company Keystone may not terminate this Agreement to enter into any Alternative Company Acquisition Agreement unless:
a definitive agreement with respect to a Superior Proposal unless (i) the Company Board provides Parent at least five (5) days’ prior written notice it notifies TCBX in writing of its intention to take such action at least three (it being understood that 3) Business Days prior to taking such action, specifying the delivery material terms of any applicable Superior Proposal, identifying the Person(s) making such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a and providing TCBX an unredacted copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail all of the Company Intervening Event;
agreements with the party making such Superior Proposal, (ii) during the five TCBX does not make, after being provided with reasonable opportunity to negotiate with Keystone and its agents and representatives, within such three (53) days following such written notice described Business Day period, irrevocable adjustments in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board terms and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms conditions of this Agreement that mayKeystone’s Board determines, in good faith after consultation with its counsel and financial advisors, is at Parentleast as favorable to Keystone’s sole discretion, be proposed by Parent in response to shareholders as such Company Superior Proposal or Company Intervening Event, as applicable; and
and (iii) at the end of the five (5) day period described Keystone is not in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes material breach of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)5.22.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.), Agreement and Plan of Reorganization (Third Coast Bancshares, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease Notwithstanding anything else in this Section 5.02 (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned but otherwise subject to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date terms of this Agreement. From and after ), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Central Time) on the earlier to occur of the Effective Time or date that is 30 days after the date of termination execution of this Agreement in accordance (the “Original Solicitation Period End Date”), as such date may be extended to the Solicitation Period End Date (as defined below) with ARTICLE 9respect to only a Continuing Party pursuant to the second proviso of this Section 5.02(a), the Company, and any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, and any Affiliate of, the Company or any Company Subsidiary shall notbe permitted (acting under the direction of the Company Board, nor shall it permit any of its Subsidiaries toor, nor shall it authorize or knowingly permit any of its Representatives if applicable, the Special Committee) to (and shall use reasonable best efforts to cause such Persons not to), i) directly or indirectly, (A) indirectly solicit, initiate or knowingly encourage the submission of a Company Takeover Proposal and (including by way of furnishing ii) directly or indirectly participate in discussions or negotiations regarding, and furnish to any Person information which has not been previously publicly disseminated)with respect to, or knowingly and take any other action to facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would could reasonably be expected to lead to, a Company Acquisition Takeover Proposal; provided, however, that (A) the Company shall not, nor shall it authorize or permit any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary to: (i) provide to any Person any non-public information with respect to the Company or any Company Subsidiary without first entering into an Acceptable Confidentiality Agreement with such Person, (Bii) subject to Section 5.02(b)grant any waiver, approve amendment or recommendrelease under any standstill or confidentiality agreement, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommendanti-takeover Laws, or publicly propose to (iii) approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, commitment, merger agreement, acquisition agreement or similar agreement relating to any Company Takeover Proposal or that conflicts with this Agreement or requires or would reasonably be expected to require, the Company to abandon this Agreement (each, an “Acquisition Agreement”) other than an Acceptable Confidentiality Agreement or a non-binding letter of intent or term sheet entered into prior to the Original Solicitation Period End Date described in clause (B) of the second proviso of this Section 5.02(a), and (B) the Company shall promptly provide to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to such Person, its Representatives or Affiliates which was not previously provided to Parent, its Representatives or Affiliates; and provided, further, that the Solicitation Period End Date shall be extended until the date provided in the immediately following sentence solely with respect to any Person (a “Continuing Party”) that has submitted to the Company a bona fide detailed written Company Takeover Proposal prior to the end of the Original Solicitation Period End Date that (1) shall (A) provide that each issued and outstanding share of Company Common Stock shall be converted into the right to receive in excess of $13.55, (B) include a non-binding letter of intent or term sheet reflecting the material terms of such Company Takeover Proposal (which the Company may or may not sign), (C) include a draft merger agreement (which may be provided in the form of this Agreement marked to show a draft of the changes such Continuing Party proposes to make to this Agreement), (D) include a detailed non-binding term sheet setting forth the proposed terms of any proposed equity and/or debt financing required to fund the purchase price in connection with any such Company Takeover Proposal, and (E) include any draft voting or other agreementancillary agreements with the Company or any of its Affiliates that comprise a material component of such Company Takeover Proposal and (2) the Company Board (or, arrangement if applicable, the Special Committee), determines, by 11:59 p.m. (Central Time) on the day that is two (2) calendar days after the Original Solicitation Period End Date (the “Continuing Party Determination Date”), in good faith, after consultation with its outside counsel and its independent financial advisors, is a Superior Company Proposal or understandingwould reasonably be expected to lead to a Superior Company Proposal by or prior to 11:59 p.m. (Central Time) on the date that is 45 days after the execution of this Agreement as such date may be extended with respect to a particular Continuing Party pursuant to the following sentence (the “Solicitation Period End Date”). The Original Solicitation Period End Date solely with respect to any such Continuing Party shall be deemed to be extended until, and terminate at, the Solicitation Period End Date, unless on or prior to such date, the Company shall have delivered a Superior Proposal Notice with respect to a Superior Company Proposal proposed by such Continuing Party pursuant to Section 8.05(b) hereof, in which case the Solicitation Period End Date solely with respect to such Continuing Party shall be deemed to be extended until, and shall terminate on, 11:59 p.m. (Central Time) on the date that is two (2) Business Days following the last day of the last Notice Period (including any new Notice Period(s) that may be required if any Continuing Party makes any modification to the financial terms or other material terms of a Company Takeover Proposal prior to the Solicitation Period End Date as extended hereby) described in Section 8.05(b) relating to such Superior Company Proposal. Notwithstanding anything in this Section 5.02(a) to the contrary, any Continuing Party shall cease to be a Continuing Party for all purposes hereunder at such time as any bona fide detailed written Company Takeover Proposal made by such Continuing Party is withdrawn, terminated, expires or at any time fails to satisfy the requirements of this Section 5.02(a) in all respects, with respect to the terms of clause (1)(A) of the second proviso of the first sentence of this Section 5.02(a), and otherwise in all material respects.
(b) Subject to the terms hereof (including Section 5.02(a) with respect to a Continuing Party and Sections 5.02(c), 5.02(d) and 8.05), from the day following the Original Solicitation Period End Date until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary, or any Representative or Affiliate of, the Company or any Company Subsidiary to, (i) directly or indirectly solicit, initiate, propose, encourage, facilitate or induce any inquiries, discussions, proposals, indications of interest, submissions or announcements of any Company Takeover Proposal, or take any other action to encourage, facilitate or assist any inquiries or discussions, or the making of any proposal, indication of interest, submission or announcement, in each case relating case, that constitutes or could reasonably be expected to a lead to, any Company Takeover Proposal, (ii) approve or enter into any Acquisition Proposal Agreement (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (Diii) enter into, continue directly or otherwise indirectly participate or engage in any discussions or negotiations regarding any Company Acquisition Takeover Proposal, (iv) furnish to any Person (other than Parent, Sub or (Eany Representative of Parent or Sub) agree any non-public information relating to do the Company or any of the foregoing; providedCompany Subsidiaries, howeveror afford to any Person (other than Parent, if, prior Sub and any Representatives of Parent and Sub) access to the receipt business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Stockholder Approval, following the receipt or any of a bona fide written Company Acquisition Proposal that the Company Board determines Subsidiaries, in good faithany such case, after consultation with which could reasonably be expected to induce the Company’s outside financial advisors and outside legal counselmaking, is proposal, submission or announcement of, or which could reasonably be expected to encourage, facilitate or assist, a Company Takeover Proposal or any inquiries or discussions, or the making of any proposal, indication of interest, submission or announcement, in any such case, which could reasonably be expected to lead to a Company Superior Takeover Proposal (it being acknowledged and agreed by Parent that was the terms of this clause (iv) shall not solicited be deemed breached by any disclosure by the Company of non-public information in the ordinary course of business consistent with past practice to any customer or supplier solely in its capacity as a customer or supplier and not in the context of a Company Takeover Proposal, it being further acknowledged and agreed that any provision of such information to any customer or supplier when acting in the capacity of a potential maker of a Company Takeover Proposal shall be deemed a breach of the terms of this clause (iv) (unless such information is provided pursuant to and in compliance with the terms of Section 5.02(c)), or (v) grant any waiver, amendment or release under any standstill or confidentiality agreement, or anti-takeover Laws, or otherwise take any action with the primary purpose of facilitating any effort or attempt by any Person to make a Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary, Representative or Affiliate of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 5.02(b) by the Company. Subject to Section 5.02(a) made after (with respect to only a Continuing Party) and Section 5.02(c), beginning on the date of this Agreementday following the Original Solicitation Period End Date, the Company mayshall immediately cease and cause to be terminated any existing solicitation, encouragement, discussion, negotiation or other action permitted by Section 5.02(a) conducted by the Company, any Company Subsidiary or any of their respective Representatives or Affiliates regarding any proposal that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal (other than with respect to a Person that is then a Continuing Party). The Company shall, (X) on the Continuing Party Determination Date, deliver a written notice to each Person that submitted a Company Takeover Proposal prior to the Original Solicitation Period End Date (other than with respect to a Person that is, as of such date, a Continuing Party, or with respect to a Person which has made a Company Takeover Proposal and with which the Company would be allowed to participate in response discussions and negotiations with respect to such Company Acquisition ProposalTakeover Proposal pursuant to and in accordance with Section 5.02(c), and subject to compliance the last sentence of Section 5.02(a)) to the effect that, the Company is ending all discussions and negotiations with such Person with respect to any Company Takeover Proposal, effective on and from such date, and the notice shall also request that such Person promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries, and (Y) provide Parent with (A) the number of Persons that have been qualified as Continuing Parties and (B) copies of all documents referred to in clauses (B) through (E) of the second proviso in Section 5.02(a); provided, however, that, subject to Section 5.02(e) and Section 8.05(b), the Company may (1) limit the identity of the Continuing Party to whether it is a strategic or financial Person (including making any necessary redactions in any of the copies referred to in clause (B) above) and (2) exclude the identity of the financing sources, and pricing terms of the financing proposed to be provided by such financing sources, in connection with the Company Takeover Proposal proposed by any such Continuing Party.
(c) Notwithstanding anything to the contrary in Section 5.02(b), but subject to the other terms of this Agreement (including Section 5.02(a) and Sections 5.02(d), 5.02(f) and 8.05) from the day after the Original Solicitation Period End Date to the date on which the Company Stockholder Approval is received, the Company may in response to an unsolicited, bona fide written Company Takeover Proposal which did not result from a breach of Section 5.02, and which the Company Board (acting through the Special Committee, if applicable) determines, in good faith, (1) after consultation with its outside counsel and its independent financial advisors, constitutes or would reasonably be expected to lead to, a Superior Company Proposal and (2) would be reasonably likely to result in a breach of their fiduciary duties to the Company’s stockholders if they fail to take the actions described in clauses (x) and (y) below, take the following actions (or instruct their Representatives to take the following actions): (x) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Acquisition Takeover Proposal and engage its Representatives pursuant to an Acceptable Confidentiality Agreement and (y) participate in discussions or negotiations with such Person Person, its Representatives and Affiliates regarding any such Company Acquisition Takeover Proposal; provided. The parties agree that nothing herein shall prevent the Company or its Representatives from directing any Persons to this Agreement from the day following the Original Solicitation Period End Date until the receipt of the Company Stockholder Approval or, that if earlier, the date of termination of this Agreement pursuant to the terms hereof.
(1d) prior Subject to furnishingSection 8.01(d) and 8.01(f), commencing on the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, neither the Company nor the Company Board (acting through the Special Committee, if applicable) nor any committee thereof shall (i) withhold, withdraw, amend, qualify or modify, in a manner adverse to Parent or Sub, or causing propose publicly to be furnishedwithhold, any such nonpublic information relating withdraw, amend, qualify or modify, in a manner adverse to the Company Parent or Sub, or change to such Persona neutral position or no position, the Company enters into Board Recommendation, (ii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, or publicly take a confidentiality agreement neutral position or no position with respect to, any Company Takeover Proposal, (iii) make any public statement or take any public action in connection with the Person making such Company Acquisition Proposal Stockholders Meeting that is inconsistent with the Company Board Recommendation, or (iv) fail to include the Company Board Recommendation in the Proxy Statement (any of the actions or events described in clauses (i) through (iv), an “Acceptable Company Confidentiality AgreementAdverse Recommendation Change”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to ). Notwithstanding anything in this Section 5.02 and (y5.02(d) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in (but otherwise subject to the terms of this Agreement), at any time prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company (or, if applicable, the Special Committee) may, make an Adverse Recommendation Change Change: (i) in response to a Superior Company Proposal, but only after compliance with Section 8.05(b); or (ii) in response to an Intervening Event if, but only if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation majority of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case directors of a Company Acquisition Proposal, the Company Board concludes (acting through the Special Committee, if applicable) shall have determined in their good faithfaith judgment, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; counsel and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counselan independent financial advisor, that the failure to make a Company an Adverse Recommendation Change in response to such Intervening Event would result or would reasonably be inconsistent with the expected to result in a breach of their fiduciary duties to the stockholders of the Company Board under applicable Lawthe DGCL (any such determination, an “Intervening Event Determination”); provided(B) the Company promptly, howeverbut in any event within one (1) day of making any Intervening Event Determination, none of the Company, notifies Parent in writing that the Company Board or (acting through the Special Committee, if applicable) has made an Intervening Event Determination (any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(isuch notice, an “Intervening Event Notice”) the Company Board and provides Parent with a description of the Intervening Event in reasonable detail; (C) for a period of at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following receipt by Parent of an Intervening Event Notice (such written notice described in time period, the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below“Intervening Event Notice Period”), the Company Board and its Representatives have has, if requested by Parent, negotiated in good faith with Parent (to the extent permit Parent desires to negotiate) regarding any revisions make a proposal or to amend the terms of the Transactions or this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicableAgreement; and
(iiiD) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below)Intervening Event Notice Period, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable proposals (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).in
Appears in 2 contracts
Sources: Merger Agreement (Sport Supply Group, Inc.), Merger Agreement (Sage Parent Company, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing Except with respect to the commitment letter entered into with JPMorgan Securities Inc. and JPMorgan Chase Bank relating to a Company refinancing of Indebtedness, as more fully described in the Partnership’s Form 8-K filed on November 5, 2004, as amended or replaced from time to time, and related transactions (the “Chase Refinancing Proposal”), the Sellers shall promptly notify Buyer if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Sellers, the Operating Company, Stellar Propane or any of their Representatives, in each case, in connection with an Acquisition Proposal (an “Acquisition Proposal Interest”), which notice must identify the name of the Person indicating such Acquisition Proposal Interest and the material terms and conditions of any Acquisition Proposal.
(b) Except with respect to the Chase Refinancing Proposal, the Sellers and their Representatives shall (ii) furnishing to any Person (other than Parent, Merger Sub, and shall cause the Operating Company and Stellar Propane and their respective Representatives to) immediately cease and the Company’s Representatives) cause to be terminated all existing discussions, negotiations and communications with any information Persons with respect to a Company any Acquisition Proposal and (iii) cooperating withProposal. Except as provided in Section 8.8(c), assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after from the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9or the Closing, none of the Sellers, the Operating Company shall notor Stellar Propane may, nor shall it permit any of its Subsidiaries to, nor shall it and may not authorize or knowingly permit any of its their respective Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly (i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)encourage, or knowingly take any action to facilitate any inquiry or the making of, any offer or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would that may be reasonably be expected likely to lead toto any third-party Acquisition Proposal or (ii) enter into any Contract or Other Agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, a Company nothing contained in this Section 8.8 prohibits the Sellers from (x) in the event of an unsolicited Acquisition Proposal, requesting from the third party such information as may be reasonably necessary for the board of directors of the General Partner (Bon behalf of itself and as general partner of the Partnership) subject to Section 5.02(b), approve or recommend, or publicly propose inform itself as to approve or recommend, the material terms of such Acquisition Proposal for the sole purpose of determining whether such Acquisition Proposal constitutes a Company Acquisition Superior Proposal, (Cy) subject taking (and disclosing to Section 5.02(b), approve the Partnership’s unitholders or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating partners) its position with respect to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) tender or exchange offer by a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (Ez) agree making such disclosure to do any the Partnership’s unitholders or partners as in the good-faith judgment of the board of directors of the General Partner, after receipt of advice from outside legal counsel to the Sellers, that such disclosure is necessary for the board of directors of the General Partner to comply with its fiduciary duties under applicable Law.
(c) Notwithstanding the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this AgreementClosing Date, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), may furnish information concerning the Business or the assets associated with respect the Business to the Company any Person pursuant to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are terms no less restrictive on such Person favorable to the Sellers or their Affiliates than those contained in the Confidentiality Agreement as and may negotiate and participate in effect immediately prior to the execution of this Agreement (provideddiscussions and negotiations with such Person concerning an Acquisition Proposal if, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): , (Ii) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn reasonably likely to be consummated (taking into account the legal aspects of the proposal, the Person making the Acquisition Proposal and approvals required in connection therewith), (ii) such entity or (B) there group has been a Company Intervening Event; (II) on an unsolicited basis, and in the case absence of any violation of this Section 8.8 by the Sellers or their Affiliates, submitted a Company Acquisition Proposalbona fide, fully financed, written proposal to the Company Board concludes Sellers relating to any such transaction that the board of directors of the General Partner determines in good faith, after consultation with receiving advice from the CompanySellers’ financial advisors, is more favorable to the Partnership’s outside unitholders or partners from a financial advisors and outside legal counselpoint of view than the transactions contemplated by this Agreement, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIiii) in the Company Board concludes in good faithfaith opinion of the board of directors of the General Partner, after consultation with the Company’s outside legal counselcounsel to the Sellers, providing such information or access or engaging in such discussions or negotiations is in the best interests of the Partnership and its unitholders or partners and necessary in order for the board of directors of the General Partner to discharge its fiduciary duties to the Partnership’s unitholders or partners under applicable Law (an Acquisition Proposal that satisfies clauses (i), (ii) and (iii) being referred to as a “Superior Proposal”). The Sellers shall promptly, and in any event within two business days following receipt of a Superior Proposal and prior to providing any Person with any material non-public information, notify Buyer of the failure receipt of the same. The Sellers shall promptly provide to make a Company Adverse Recommendation Change would be inconsistent Buyer any material non-public information regarding the Sellers, the Operating Company, Stellar Propane, the Business or the assets associated with the fiduciary duties Business provided to any Person that was not previously provided to Buyer, such additional information to be provided no later than the date of provision of such information to such Person.
(d) Except as set forth in this Section 8.8, neither the board of directors of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or General Partner nor any committee thereof shall make may (i) withdraw or modify, or propose to withdraw or modify, in a Company Adverse Recommendation Change and/or authorize manner adverse to the Company transactions contemplated by this Agreement or to Buyer, the approval or recommendation by the board of directors of the General Partner of this Agreement or the transactions contemplated by this Agreement, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any Alternative Company Acquisition Contract or Other Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to any Acquisition Proposal. Notwithstanding the Company Superior Proposal that is specified in Section 5.02(c)foregoing, as well as a copy prior to the Closing, the board of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail directors of the Company Intervening Event;
General Partner may (ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions subject to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal and the following sentence) withdraw or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (modify its approval or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms recommendation of this Agreement proposed and irrevocably committed or the transactions contemplated by this Agreement, approve or recommend a Superior Proposal, or enter into a Contract or Other Agreement with respect to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change andan “Acquisition Agreement”), in each case, case at any time after the third business day following the Sellers’ delivery to Buyer of written notice advising Buyer that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties board of directors of the Company Board under applicable Law. Any amendment or modification to General Partner has received a Superior Proposal, specifying the conditionality, price or form material terms and conditions of consideration of any Company such Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and identifying the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any Person making such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretoSuperior Proposal; provided, however, that neither the “matching period” set forth above shall in such circumstance expire on the later Sellers nor any of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether their Affiliates may enter into a Contract or not there is a Company Adverse Recommendation Change, unless this Other Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, Proposal unless the Company shall only Sellers comply with Section 8.8(e).
(e) The Sellers may terminate this Agreement and the Sellers or their Affiliates may enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b)a Superior Proposal, the Company provided that, prior to any such termination, (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiriesthe Sellers have provided Buyer written notice that they intend to terminate this Agreement pursuant to this Section 8.8(e), proposals or offers with respect to a Company Acquisition identifying the Superior Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought then determined to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer more favorable and the material terms and conditions of any such inquiriesparties thereto, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informedat least three full business days after the Sellers have provided the notice referred to in clause (i) above, on the Sellers deliver to Buyer (A) a reasonably prompt basis (and, in any event, within 24 hours) written notice of the status termination of any material discussions or negotiations with respect this Agreement pursuant to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereofthis Section 8.8(e), and including copies (B) a wire transfer of any written inquiries, proposals or offers, including proposed agreements and material modifications theretoimmediately available funds in the amount of $20,000,000 (the “Termination Fee”).
Appears in 2 contracts
Sources: Interest Purchase Agreement (Star Gas Partners Lp), Interest Purchase Agreement (Inergy L P)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to From the date of this Agreement. From and after the date of this Agreement hereof until the earlier to occur of the Effective Time or or, if earlier, the date of termination of this Agreement in accordance with ARTICLE 9its terms, the Company shall not, nor directly or indirectly, shall it permit any of cause its Subsidiaries toand the respective officers, nor shall it authorize or knowingly permit any directors and financial advisers of its Representatives the Opnext Corporations to (and shall use reasonable best efforts to cause such Persons not to)not, directly or indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of the Opnext Corporations do not, directly or indirectly:
(Ai) solicit, initiate or initiate, knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry the making, submission or the making or submission announcement of any inquiryAcquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation;
(ii) furnish any information regarding any of the Opnext Corporations to any Person in connection with or in response to an Acquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation;
(iii) engage in discussions or negotiations with any Person relating to any Acquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation;
(iv) approve, proposal, indication endorse or recommend any Acquisition Proposal with respect to an Opnext Corporation or Acquisition Inquiry with respect to an Opnext Corporation or any Person or group becoming an “interested stockholder” under Section 203 of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, the DGCL; or
(Bv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case relating to a Company Acquisition Proposal any Contract (other than an Acceptable Company Confidentiality Agreementa confidentiality agreement on the terms described below) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue contemplating or otherwise participate in relating to any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree Transaction with respect to do any of the foregoingan Opnext Corporation; provided, however, if, that prior to the receipt adoption of this Agreement by the Required Company Stockholder Vote, neither this Section 4.4(a) nor any other provision of this Agreement shall prohibit the Company Stockholder Approvalfrom furnishing nonpublic information regarding the Opnext Corporations to, following the receipt of a bona fide written Company or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is submitted to the Company by such Person after the date hereof (and not withdrawn) if: (A) such Acquisition Proposal did not result from any material breach of, or any action materially inconsistent with, any of the provisions set forth in this Section 4.4(a); (B) the Company Board determines concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, that such Acquisition Proposal is or could reasonably be expected likely to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(aOffer; (C) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) at least one business day prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to the Company to to, or entering into discussions or negotiations with, such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into a discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an “Acceptable Company Confidentiality Agreement”including nondisclosure provisions, use restrictions and non-solicitation) that (x) does not contain any provision that would prevent at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in aggregate) as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement does not need to contain any provision prohibiting (including, any direct or indirect include “standstill” or similar provisions that prohibitprovisions); and (D) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing contemporaneously furnishes any such nonpublic information provided to such Person, the Company furnishes such nonpublic information Person to Parent (to the extent such nonpublic information has not been previously so furnished by the Company to Parent or its RepresentativesParent).
(b) Notwithstanding anything From the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, Parent shall not, directly or indirectly, shall cause its Subsidiaries and the respective officers, directors and financial advisers of the Oclaro Corporations to not, directly or indirectly, and shall use its reasonable best efforts to ensure that the contrary other Representatives of the Oclaro Corporations do not, directly or indirectly
(i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(ii) furnish any information regarding any of the Oclaro Corporations to any Person in this Agreementconnection with or in response to an Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(iii) engage in discussions or negotiations with any Person relating to any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation;
(iv) approve, endorse or recommend any Acquisition Proposal with respect to an Oclaro Corporation or Acquisition Inquiry with respect to an Oclaro Corporation or any Person or group becoming an “interested stockholder” under Section 203 of the DGCL; or
(v) enter into any letter of intent or similar document or any Contract (other than a confidentiality agreement on the terms described below) contemplating or otherwise relating to any Acquisition Transaction with respect to an Oclaro Corporation; provided, however, that prior to the receipt approval of the Company issuance of shares of Parent Common Stock in the Merger by the Required Parent Stockholder ApprovalVote, neither this Section 4.4(b) nor any other provision of this Agreement shall prohibit Parent from furnishing nonpublic information regarding the Company Board may effect a Company Adverse Recommendation Change if Oclaro Corporations to, or entering into discussions and negotiations with, any Person in response to an Acquisition Proposal that is submitted to Parent by such Person after the date hereof (and only not withdrawn) if): (I) : (A) a written Company such Acquisition Proposal that was did not solicited result from any material breach of, or any action materially inconsistent with, any of the provisions set forth in violation of this Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or 4.4(b); (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Parent Board concludes in good faith, after consultation having consulted with the Company’s outside financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes is reasonably likely to lead to a Company Superior ProposalOffer; (C) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions or non-solicitation provisions) at least as favorable to Parent (in the aggregate) as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (IIID) Parent contemporaneously furnishes any nonpublic information provided to such Person to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company).
(c) Each of Parent and the Company shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal with respect to an Oclaro Corporation or an Opnext Corporation, as the case may be, or Acquisition Inquiry with respect to an Oclaro Corporation or an Opnext Corporation, as the case may be) advise the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and copies of all correspondence and other written material sent or provided to such party in connection therewith) that is made or submitted by any Person during the Pre-Closing Period. Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep the other party reasonably informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and terms of any material modification or proposed material modification thereto.
(d) Each of Parent and the Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(e) Each of Parent and the Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which any such party or any of its Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, and will use its reasonable best efforts to cause each such agreement to be enforced in accordance with its terms at the request of the other party to this Agreement unless, in each case, the Company Board concludes or the Parent Board, as applicable, determines in good faith, after consultation with the Company’s its outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to would be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the breach of its fiduciary duties of the Company Board to its stockholders under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Legal Requirements.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries Subject to and shall request that its Representatives, immediately cease (iSections 5.4(b) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iiic) cooperating withand except as permitted by this Section 5.3, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Acceptance Time or the date of termination of this Agreement in accordance with ARTICLE 9, pursuant to Section 8.1:
(i) the Company shall not, nor shall it the Company permit any of its Subsidiaries to, nor shall it the Company authorize or knowingly permit any of its Representatives to (or any of its Subsidiary’s Representatives to, and the Company shall use reasonable best efforts to cause such Persons not publicly propose to), directly or indirectlyindirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate initiate, facilitate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)any inquiries, proposals or offers that constitute, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or that would reasonably be expected to lead to, a Company an Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter intoengage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding any Company an Acquisition Proposal, or (E) agree furnish to do any of the foregoing; provided, however, if, prior Third Party information or provide to any Third Party access to the receipt businesses, properties, assets or personnel of the Company Stockholder Approvalor any of its Subsidiaries, following in each case for the receipt purpose of a bona fide written Company encouraging or facilitating an Acquisition Proposal that or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company Board determines in good faithto abandon, after consultation with terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s outside financial advisors and outside legal counselits Subsidiaries’ Representatives to, is or could reasonably be expected to lead to a Company Superior Proposal immediately cease and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in terminate any existing discussions or negotiations with such Person regarding such Company any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the receipt Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of the Company Stockholder Approvalwho is not an officer or director of the Company), (iii) the Board of Directors of the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes any committee thereof determines in good faith, after consultation with the Company’s outside financial advisors Company Financial Advisor and outside legal counsel, that such Company Acquisition Proposal constitutes constitutes, or could reasonably be expected to lead to, a Company Superior Proposal; , and (IIIiv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure to take the actions referred to in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders of the Company under Applicable Law, then the Company may (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations; provided, however, that the Company (1) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries or access provided to such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (without any determination by the Board concludes of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt of an Acquisition Proposal from a Third Party that did not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), contact such Third Party solely in order to clarify and understand the terms and conditions of an Acquisition Proposal made by such Third Party so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and/or (y) direct any Persons to this Agreement, including the specific provisions of this Section 5.3.
(c) From and after the date hereof, and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposal, which notification shall include (i) a copy of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or negotiations regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof).
(d) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any of its Subsidiaries is a party, other than to the extent the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company’s Company Financial Advisor and outside legal counsel, that the failure to make do so would constitute a Company Adverse Recommendation Change would be inconsistent with breach of the directors’ fiduciary duties of the Company Board under applicable Applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
No Solicitation. (a) From the date of this Agreement until the Effective Time, except as specifically permitted in Section 5.5(d), the Company agrees that neither it nor any of its Subsidiaries nor any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ Representatives not to, directly or indirectly:
(i) initiate, solicit or encourage (including by way of providing information) or facilitate any inquiries, proposals or offers with respect to, or the making, or the completion of, a Takeover Proposal;
(ii) participate or engage in any discussions or negotiations with, or furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to, or otherwise cooperate with or assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company Board Recommendation in any manner adverse to Parent or Merger Sub;
(iv) approve, endorse or recommend any Takeover Proposal;
(v) enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to a Takeover Proposal; or
(vi) resolve, propose or agree to do any of the foregoing (provided, however, that providing notice of the restrictions set forth in this Section 5.5 to a third party in response to any such inquiry, request or Acquisition Proposal shall not, in and of itself, be deemed a breach of this Section 5.5(a)).
(b) The Company shall, and shall cause each of its Subsidiaries to and shall request that its RepresentativesRepresentatives to, immediately cease (i) any communicationsexisting solicitations, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representativesparties hereto) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided made or indicated an intention to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreementmake a Takeover Proposal. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which promptly request that each Person who has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into executed a confidentiality agreement with the Person making Company in connection with such Company Acquisition Person’s consideration of a Takeover Proposal (an “Acceptable other than the parties hereto and their respective advisors) return or destroy all non-public information furnished to that Person by or on behalf of the Company. The Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent shall promptly inform its Representatives of the Company from complying with its obligation to provide any disclosure to Parent required pursuant to Company’s obligations under this Section 5.02 and 5.5.
(yc) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any The Company Acquisition Proposal), and (2) shall notify Parent promptly (but and in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent upon receipt by it or its Representatives).
Subsidiaries or Representatives of (bi) Notwithstanding anything to the contrary in this Agreementany Takeover Proposal or indication by any Person that it is considering making a Takeover Proposal, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (Iii) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made any request for non-public information relating to the Company by or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to a Third Party and such Company Acquisition Takeover Proposal is not withdrawn or (Biii) there has been a any inquiry or request for discussions or negotiations regarding any Takeover Proposal. The Company Intervening Event; shall notify Parent promptly (IIand in any event within 24 hours) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery identity of such notice Person and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition AgreementTakeover Proposal, indication, inquiry or request (B) the facts and circumstances in reasonable detail or, where no such copy is available, a description of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (Takeover Proposal, indication, inquiry or such shorter period as is specified in this Section 5.02(b) belowrequest), the including any modifications thereto. The Company Board and its Representatives have negotiated in good faith with shall keep Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors reasonably informed on a current basis (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrencethe occurrence of any changes, developments, discussions or negotiations) notify Parent of the status of any such new Company Acquisition Proposal Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01foregoing, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.5(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to Parent. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any inquiriesexisting standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, proposals and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement.
(d) Notwithstanding the foregoing, the Company shall be permitted, if it has otherwise complied with its obligations under this Section 5.5, but only prior to satisfaction of the condition set forth in Section 6.1(a) herein, to:
(i) engage in discussions or offers negotiations with respect a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.5 if, prior to a taking such action, (A) the Company Acquisition enters into an Acceptable Confidentiality Agreement with such Person and (B) the Company Board determines in good faith (1) after receiving the advice of its financial advisors that such Takeover Proposal that are received byconstitutes, or is reasonably likely to result in, a Superior Proposal and (2) after receiving the advice of its outside legal counsel that failing to take such action would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws;
(ii) furnish or disclose any non-public information with regard relating to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives)Subsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.5 if, indicatingprior to taking such action, the Company Board determines in good faith (A) after receiving the advice of its financial advisors that such Takeover Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (B) after receiving the advice of its outside legal counsel that failing to take such action would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to Parent if such non-public information has not previously been disclosed to Parent; and
(iii) in connection with a Takeover Proposal that is or becomes a Superior Proposal, withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent or Merger Sub, if the Company Board has determined in good faith, after receiving the advice of outside legal counsel that failing to take such notice, action would create a reasonable likelihood of a breach by the identity Company Board of its fiduciary obligations to the stockholders of the Person Company under applicable Laws, provided that prior to any such withdrawal, modification or group amendment to the Company Board Recommendation, (A) the Company shall have given Parent prompt written notice advising Parent of Persons making (x) the inquiry, proposal or offer decision of the Company Board to take such action and the reason for taking such action and (y) the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offersthe Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed agreementstransaction agreements with such party and other material documents, (B) the Company shall have given Parent three Business Days after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (C) the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, and after receiving the advice of outside legal counsel that failure to make such withdrawal, modification or amendment of the Company Board Recommendation would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws, provided further that, in the event the Company Board does not make the determination referred to in clause (C) of this paragraph but thereafter determines to withdraw, modify or amend the Company Board Recommendation pursuant to this Section 5.5(d)(iii), the procedures referred to in clauses (A), (B) and (iiC) thereafter above shall keep Parent reasonably informedapply anew and shall also apply to any subsequent withdrawal, on a reasonably prompt basis amendment or modification.
(and, in any event, within 24 hourse) Section 5.5(d) shall not prohibit the Company Board from disclosing to the stockholders of the status Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (other than any disclosure prohibited by Section 5.5(d)); provided, however, that any disclosure other than a “stop, look and listen” or similar communication of any material discussions the type contemplated by Rule 14d-9(f) under the Exchange Act shall be deemed to be a withdrawal, modification or negotiations with respect amendment of the Company Board Recommendation in a manner adverse to any such inquiries, proposal Parent or offers and Merger Sub unless the details of any material changes Company Board (x) expressly reaffirms the Company Board Recommendation to the status and material terms Company’s stockholders in favor of adoption of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any such inquiriesaction to exempt any Person from the restrictions on “business combinations”, proposals “control share acquisitions”, “takeover offers” or offers similar provisions contained in the DGCL, including Section 203 (including any material amendments thereto or any change similar provisions), or otherwise cause such restrictions not to the scope or material terms or conditions thereof, and including copies apply unless such actions are taken simultaneously with a termination of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Jarden Corp), Merger Agreement (K2 Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, all existing discussions or negotiations with any Person (other than Parent and Merger Sub) that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company an Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during promptly inform any such communicationsPerson of the obligations under this Section 6.3 and to return or destroy all confidential information. Except as permitted by this Section 6.3, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after from the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9Section 8.1, the Company shall not, nor and shall it permit any cause each of its Subsidiaries and its and their respective officers, directors, employees and agents not to, nor and shall it authorize or knowingly permit any direct each of its Representatives to investment bankers, financial advisors, attorneys, accountants and other representatives (and shall use reasonable best efforts to cause such Persons collectively, “Representatives”) not to), directly or indirectly, (Ai) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal or offer which constitutes, or would could reasonably be expected to lead to, a Company any Acquisition Proposal, (Bii) subject furnish any nonpublic information regarding the Company or its Subsidiaries to Section 5.02(b), approve any Person in connection with or recommend, or publicly propose in response to approve or recommend, a Company an Acquisition Proposal, (Ciii) subject to Section 5.02(b)engage in, approve continue or recommendotherwise participate in, any negotiations or discussions regarding any Acquisition Proposal or (iv) approve, recommend or enter into, or publicly propose to approve or recommendapprove, or execute recommend or enter into into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal similar agreement (other than an Acceptable Company Confidentiality AgreementAgreement entered into in accordance with the terms of this Section 6.3) or a Company Superior Proposal with respect to any Acquisition Proposal.
(each an “Alternative Company Acquisition Agreement”b) Notwithstanding anything to the contrary contained in Section 6.3(a), if contacted by a Person making an Acquisition Proposal after the date of this Agreement (Di) enter into, continue the Company and its Representatives may contact the Person making such Acquisition Proposal and its Representatives to ascertain facts or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any clarify terms and conditions for the sole purpose of the foregoing; provided, however, Board of Directors of the Company informing itself about the Acquisition Proposal and the Person that made it and (ii) if, prior to the receipt of the obtaining Company Stockholder ApprovalApproval but not after, following the receipt of a bona fide written Company Acquisition Proposal proposal, that did not result from a breach of Section 6.3, which the Board of Directors of the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counselits advisors, is constitutes, or could reasonably be expected to lead to to, a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this AgreementProposal, the Company and the Company Representatives may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b6.3(d), (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Company Acquisition Proposal and its Representatives and financing sources pursuant to an Acceptable Confidentiality Agreement; provided that, to the extent not previously made available to Parent, the Company furnishes Parent with all such nonpublic information delivered to such Person promptly after its delivery to such Person and (B) engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided. A breach of this Section 6.3 by any Representative of the Company, that (1) prior to furnishingacting by or on behalf of the Company, or causing to be furnished, any such nonpublic information relating to will constitute a breach by the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to of this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)6.3.
(bc) Notwithstanding anything to the contrary in any other provision of this Agreement, including Section 6.1 and Section 6.2, but subject to compliance with this Section 6.3, prior to the receipt of the Company Stockholder ApprovalApproval but not after, the Board of Directors of the Company or any committee thereof may, in response to any unsolicited, bona fide Acquisition Proposal from any Person that did not result from a breach of this Section 6.3, (i) withdraw (or modify or qualify in a manner adverse to Parent) the Company Board may effect Recommendation, (ii) fail to include the Company Board Recommendation in the Proxy Statement or (iii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal (any action described in these clauses (i), (ii) or (iii) being referred to as a Company Adverse “Recommendation Change Withdrawal”), and subject to compliance with this Section 6.3(c) and Section 8.3(a), terminate this Agreement in order to enter into a binding, definitive acquisition agreement, merger agreement or similar agreement in respect of such Acquisition Proposal, if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation the Board of Section 5.02(a) is made to Directors of the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s its outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIB) the Board of Directors of the Company Board concludes in good faith, after consultation with the Company’s its outside legal counsel, that the failure to make a Company Adverse Recommendation Change Withdrawal would be inconsistent with the its fiduciary duties to the stockholders of the Company Board under applicable Law; provided, however, none (C) the Board of Directors of the Company, the Company Board prior to making a Recommendation Withdrawal or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board terminating this Agreement, as applicable, provides Parent at least five (5) days’ four Business Days prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change)action, which notice shall include, as applicable, (A) include the information with respect to the Company Superior such Acquisition Proposal that is specified in Section 5.02(c6.3(d), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) it being agreed that the facts and circumstances in reasonable detail delivery of such notice by the Company Intervening Event;
shall not constitute a Recommendation Withdrawal); (iiD) during the five (5) days four Business Days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), if requested by Parent, the Board of Directors of the Company Board and its Representatives shall have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicableAcquisition Proposal; and
and (iiiE) at the end of the five (5) day four Business Day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) belowD), the Board of Directors of the Company Board concludes in good faith, after consultation with the Company’s its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the CompanyParent), that, as applicable (A) that the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, and that the failure to make such Company Adverse a Recommendation Change Withdrawal in respect of a Superior Proposal would be inconsistent with the its fiduciary duties to the stockholders of the Company Board under applicable Law. Any material amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto6.3(c); provided, however, that the “matching period” set forth notice period and the period during which the Company and its Representatives are required, if requested by Parent, to negotiate with Parent regarding any revisions to the terms of this Agreement proposed in writing by Parent in response to such new Acquisition Proposal pursuant to clauses (C), (D) and (E) above shall in such circumstance expire on the later of three (3) days two Business Days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Parent.
(cd) In addition to the obligations of Parent and the Company set forth in Section 5.02(a6.3(a), Section 6.3(b) and Section 5.02(b6.3(c), the Company (i) shall promptly (promptly, and in any event within 24 hours) notify no later than 48 hours after it receives any Acquisition Proposal or request for information, advise Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public request for confidential information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such noticean Acquisition Proposal or of any Acquisition Proposal, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal and, if applicable, provide copies of any such inquirieswritten request or Acquisition Proposal, proposals or offers including any proposed agreements between the Company and the parties making the Acquisition Proposal, to Parent and shall keep Parent reasonably informed on a reasonably current basis (and providing copies but in no event more often than once every 48 hours) of all related material modifications to the terms of any Acquisition Proposal.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, from effecting, and the Board of Directors of the Company may effect, a Recommendation Withdrawal at any time prior to obtaining the Company Stockholder Approval, but not after, if (i) an Intervening Event has occurred and is continuing and (ii) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to effect a Recommendation Withdrawal in response to such Intervening Event would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that no Recommendation Withdrawal pursuant to this Section 6.3(e) may be made unless (i) the Board of Directors of the Company provides Parent four Business Days prior written inquiries, proposals or offers, including proposed agreementsnotice that it intends to take such action and provides reasonable detail with respect to such Intervening Event (it being agreed that the delivery of such notice by the Company shall not constitute a Recommendation Withdrawal) and (ii) thereafter during the four Business Days following such written notice, if requested by Parent, (A) the Board of Directors of the Company and its Representatives shall keep have negotiated in good faith with Parent reasonably informedregarding any revisions to the terms of this Agreement proposed by Parent in response to such notice and (B) at the end of such four Business Day period, on the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent), that the failure to make a reasonably prompt basis Recommendation Withdrawal would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(andf) Nothing contained in this Section 6.3 shall prohibit the Company or the Board of Directors of the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the stockholders of the Company if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be inconsistent with applicable Law or (iii) informing any Person of the existence of the provisions contained in this Section 6.3; provided, that any Recommendation Withdrawal may only be made in accordance with Section 6.3(c) or Section 6.3(e); and provided, further, that if any disclosure permitted under clause (i) above or, to the extent related to an Acquisition Proposal or Intervening Event, clause (ii) above does not reaffirm the Company Board Recommendation, such disclosure will be deemed to be a Recommendation Withdrawal and Parent will have the right to terminate this Agreement as set forth in Section 8.1(c)(ii); it being understood that, notwithstanding anything herein to the contrary, any “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act shall not in and of itself be deemed to be or constitute a Recommendation Withdrawal. Notwithstanding anything in this Agreement to the contrary, a factually accurate statement that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not, in any eventand of itself, within 24 hoursbe deemed to be a Recommendation Withdrawal.
(g) For purposes of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
No Solicitation. (a) The Immediately upon execution of this Agreement, the Company shall, shall (and shall cause its Subsidiaries officers, directors, employees, investment bankers, attorneys and other agents to) cease all discussions, negotiations, responses to inquiries (except as set forth in the proviso to this sentence) and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing other communications relating to any Person (other than Parentpotential business combination with all third parties who, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal with the Company; PROVIDED that, if any such inquiries are made after the date of this Agreement until hereof, the earlier Company shall respond by stating that it is a party to occur of the Effective Time or the date of a binding agreement with Buyer and is prohibited thereby from further responding to such inquiries.
(b) Prior to termination of this Agreement in accordance with ARTICLE 9pursuant to Article VIII hereof, the Company shall and its Subsidiaries will not, nor shall it the Company authorize or permit any officers, directors or employees of, or any investment bankers, attorneys or other agents retained by or acting on behalf of, the Company or any of its Subsidiaries to, nor shall it authorize (i) initiate, solicit or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)encourage, directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company proposal that constitutes an Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”as hereinafter defined), (Dii) enter intoexcept as permitted below, continue engage or otherwise participate in negotiations or discussions with, or furnish any discussions information or negotiations regarding data to, or take any Company other action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, or (Eiii) agree except as permitted below, enter into any agreement with respect to do any Acquisition Proposal or approve an Acquisition Proposal. Notwithstanding anything to the -33- contrary contained in this Section 6.6 or in any other provision of the foregoing; provided, however, ifthis Agreement, prior to the receipt Company Shareholders Meeting, the Company and its Board of Directors (the "COMPANY BOARD") may participate in discussions or negotiations with or furnish information to any third party making an unsolicited Acquisition Proposal (a "POTENTIAL ACQUIROR") or approve or recommend an unsolicited Acquisition Proposal if both (A) a majority of the directors of the Company Stockholder ApprovalBoard, following without including directors who have a financial interest in such Acquisition Proposal or who are or may be considered Affiliates (as defined in Rule 405 under the receipt Securities Act), or "connected persons" (as defined in Section 26 of the Irish Companies Act, 1990), of any person making an Acquisition Proposal ("DISINTERESTED DIRECTORS") determines in good faith, after receiving advice from its financial advisor, that a bona fide written Potential Acquiror has submitted to the Company an Acquisition Proposal that is a Superior Proposal (as hereinafter defined), and (B) a majority of the disinterested directors of the Company Board determines in good faith, after consultation receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firms of ▇▇▇▇ and ▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are so experienced), that the failure to participate in such discussions or negotiations or to furnish such information is inconsistent with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and Board's fiduciary duties under applicable law. In the event that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company shall receive any Acquisition Proposal, it shall promptly (and subject in no event later than 24 hours after receipt thereof) furnish to Buyer the identity of the recipient of such information and of the Potential Acquiror, the terms of such Acquisition Proposal, copies of all such information, and shall further promptly inform Buyer in writing as to the fact such information is to be provided after compliance with Section 5.02(b), furnish information with respect to the Company to terms of the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would preceding sentence. Nothing contained herein shall prevent the Company from complying with its obligation Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to provide an Acquisition Proposal or making any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that the Company's shareholders if, in the aggregate good faith judgment of the Company Board, after receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firms of ▇▇▇▇ and ▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposalso experienced), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Persondisclosure is required by applicable law. Without limiting the foregoing, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt understands and agrees that any violation of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified restrictions set forth in this Section 5.02(b6.6(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will shall be deemed to be a new Company Acquisition Proposal for purposes breach of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence6.6(b) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal sufficient to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless enable Buyer to terminate this Agreement has been terminated in accordance with pursuant to Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y8.1(d)(i) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)hereof.
(c) In addition to For the obligations purposes of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b)this Agreement, the Company (i) "ACQUISITION PROPOSAL" shall promptly (and in mean any event within 24 hours) notify Parent proposal, whether in writing of or otherwise, made by any inquiries, proposals or offers with respect person other than Buyer and its Subsidiaries to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company acquire "beneficial ownership" (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hoursas defined under Rule 13(d) of the status Exchange Act) of 20% or more of the assets of, or 20% or more of the outstanding capital stock of any material discussions of the Company or negotiations with respect its Subsidiaries pursuant to any such inquiriesa merger, proposal consolidation, exchange of shares or offers and other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the details of any material changes to the status and material terms of any such inquiries, proposals Company or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)its Subsidiaries.
Appears in 2 contracts
Sources: Acquisition Agreement (Adc Telecommunications Inc), Acquisition Agreement (Saville Systems PLC)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article VII, the Company shall and its subsidiaries will not, nor shall it will they authorize or permit any of its Subsidiaries totheir respective officers, nor shall it authorize directors, controlled affiliates or knowingly permit employees or any investment banker, attorney or other advisor or representative retained by any of its Representatives to (and shall use reasonable best efforts to cause such Persons not them to), directly or indirectly, (Ai) solicit, initiate initiate, induce or knowingly encourage the making, submission or announcement of any Acquisition Proposal (including by way of furnishing information which has not been previously publicly disseminatedas defined below), (ii) participate in any discussions or negotiations with a third party regarding, or furnish to any person any information with respect to, or take any other action to knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would may reasonably be expected to lead to, a Company any Acquisition Proposal, (Biii) subject engage in discussions with any person with respect to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company any Acquisition Proposal, (Civ) subject to Section 5.02(b)approve, approve endorse or recommend, recommend any Acquisition Proposal or publicly propose to approve or recommend, or execute or (v) enter into any letter of intentintent or similar document or any contract, memorandum of understanding, merger agreement or other agreement, arrangement commitment contemplating or understanding, in each case otherwise relating to a Company any Acquisition Proposal Transaction (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”as defined below), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, ifthat nothing contained in this Section 5.4 shall prohibit the Board of Directors of Company from (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or (ii) in response to an unsolicited, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that Company's Board of Directors reasonably concludes constitutes a Superior Proposal (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such Acquisition Proposal and approving, endorsing or recommending such Acquisition Proposal and withdrawing its recommendation of this Agreement and the Merger to the extent (A) the Board of Directors of Company Board determines in good faith, faith after consultation with the Company’s outside financial advisors and its outside legal counsel, is or could reasonably counsel (who may be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information Company's independent legal counsel acting with respect to the Company this Agreement) its fiduciary obligations under applicable law require it to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provideddo so, that (1B) (x) at least three (3) (which shall include at least two (2) business days) days prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to, or entering into discussions or negotiations with, such party, Company gives Parent written notice of Company's intention to the Company to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 party and (y) contains provisions that in Company receives from such party an executed confidentiality agreement containing customary limitations on the aggregate are no less restrictive use and disclosure of all nonpublic written and oral information furnished to such party by or on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution behalf of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal)Company, and (2C) promptly (but in any event within 24 hours) following contemporaneously with furnishing any such nonpublic information to such Personparty, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into Parent). Company and its subsidiaries will immediately cease any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and all existing activities, discussions or negotiations with any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the Company Superior Proposal foregoing, it is understood that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail violation of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified restrictions set forth in this Section 5.02(b) below)5.4 by any officer, the director, controlled affiliate or employee of Company Board and or any of its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding subsidiaries or any revisions to the terms investment banker, attorney or other advisor or representative of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end any of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will its subsidiaries shall be deemed to be a new Company Acquisition Proposal for purposes breach of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).5.4
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Proxim Inc /De/), Agreement and Plan of Reorganization (Proxim Inc /De/)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement May 9, 1999 until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9its terms, the Company Xoom shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, Xoom or any of its Representatives to (and shall use reasonable best efforts to cause such Persons not Subsidiaries to), directly or indirectly, (Ai) take any action to solicit, initiate or knowingly initiate, encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry Material Transaction Proposal (as defined below) or the making or submission of any inquiry, proposal, indication of interest a Material Transaction Proposal or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposalregarding, or (E) agree furnish to do any of the foregoingperson any information with respect to, a Material Transaction Proposal; provided, however, ifPROVIDED that, prior to obtaining the receipt affirmative vote of the Company holders of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "XOOM STOCKHOLDER APPROVAL" and, together with the Xenon 2 Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may"STOCKHOLDER APPROVALS"), in response to such Company Acquisition an unsolicited BONA FIDE Takeover Proposal, and subject Xoom may, to compliance the extent that the Board of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such action is required to comply with Section 5.02(b)their fiduciary duties under applicable law, (A) furnish information with respect to the Company Xoom and its Subsidiaries to the Person person making such Company Acquisition Takeover Proposal and engage its representatives and discuss such information with such person and its representatives and (B) participate in discussions negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or any Material Transaction Proposal, the material terms and conditions of such request or Material Transaction Proposal and the identity of the person making any such request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the status and details of any such request or Material Transaction Proposal, PROVIDED that, prior to providing any information to any Person or participating in negotiations with such Person regarding such Company Acquisition Proposal; providedany Person, that (1) prior to furnishing, or causing Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and cause to be furnishedterminated any existing activities, discussions and negotiations conducted heretofore with respect to any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Material Transaction Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to From and after May 9, 1999 until the contrary in this Agreement, prior to the receipt earlier of the Company Stockholder ApprovalEffective Time or the termination of this Agreement in accordance with its terms, the Company Board may effect a Company Adverse Recommendation Change if of Directors of Xoom shall not (and only if): (Ii) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made approve or recommend or propose publicly to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn approve or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition recommend any Material Transaction Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (IIIii) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure cause or agree to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board cause Xoom or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company of its Subsidiaries to enter into any Alternative Company Acquisition agreement (including, without limitation, any letter of intent or agreement in principle) related to a Material Transaction Proposal or (iii) prior to the Xoom Stockholder Approval, withdraw or modify, in a manner adverse to NBC, the approval or recommendation of the Board of Directors of Xoom for the adoption of the Xenon 2 Merger Agreement unless:
or vote in favor of Xoom, as sole stockholder of Xenon 2, adopting the NMC Merger Agreement at the Xenon 2 Stockholder Meeting. Notwithstanding the foregoing, if the Board of Directors of Xoom receives a Takeover Proposal without having violated SECTION 5.5(A) hereof, the Board of Directors of Xoom may, prior to obtaining the Xoom Stockholder Approval, to the extent it determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, take any action specified in clauses (i), (ii) the Company Board provides Parent or (iii) above with respect to such Takeover Proposal, but in each case only (x) at a time that is at least five (5) days’ prior business days after receipt by NBC of written notice from Xoom advising NBC that the Board of its intention Directors of Xoom has resolved to take such action and (it being understood that y) if Xoom simultaneously therewith terminates this Agreement pursuant to SECTION 9.1(G) hereof. Nothing contained in this Agreement shall prohibit Xoom or its board of directors from complying with Rules 14D-9 and 14e-2 under the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information Exchange Act with respect to any Takeover Proposal.
(c) As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry, proposal or offer from any Person relating to (i) the Company Superior Proposal that is specified in Section 5.02(c)direct or indirect acquisition or purchase of 20% or more of the assets (based on the fair market value thereof) of Xoom and its Subsidiaries, as well taken as a copy whole, or of such Company Acquisition Proposal and 20% or more of any related Alternative Company Acquisition Agreementclass of equity securities of Xoom or any of its Subsidiaries or any tender offer or exchange offer (including by Xoom or its Subsidiaries) that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Xoom or any of its Subsidiaries, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during any merger, consolidation, business combination, sale of all or substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving Xoom or any of its Subsidiaries other than the five (5) days following Transactions contemplated by this Agreement; PROVIDED, HOWEVER, that in no event shall any merger, consolidation, sale or similar transaction involving only Xoom and one or more of its wholly-owned subsidiaries or involving only any two or more of such written notice described wholly-owned subsidiaries be deemed to be a Material Transaction Proposal if such transaction is not entered into in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification violation of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company)Agreement.. As used herein, that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of "TAKEOVER PROPOSAL" means any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and from any Person relating to (A) any of the material terms and conditions of any such inquiries, proposals or offers matters set forth in clause (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hoursi) of the status definition of any material discussions Material Transaction Proposal but replacing "20%" with "50%" each place "20%" is used in such definition, (B) a sale of all or negotiations with respect substantially all of the assets of Xoom and its Subsidiaries or (C) a merger or consolidation of Xoom as a result of which the stockholders of Xoom immediately prior to any such inquiries, proposal transaction would not beneficially own immediately after such transaction 50% or offers and more of the details of any material changes to resulting or surviving entity (or the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions parent thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Agreement and Plan of Contribution, Investment and Merger (General Electric Co), Agreement and Plan of Contribution, Investment and Merger (Xoom Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit or authorize any of its Subsidiaries toor any officer, nor shall it authorize director, employee, accountant, counsel, financial advisor, agent or knowingly permit other representative of the Company or any of its Representatives to Subsidiaries (and shall use reasonable best efforts to cause such Persons not collectively, the “Company Representatives”) to), directly or indirectly, (Ai) solicit, initiate initiate, facilitate, respond to or knowingly encourage (encourage, including by way of furnishing information which has not been previously publicly disseminated)non-public information, any inquiries regarding or relating to, or knowingly the submission of, any Takeover Proposal, (ii) participate in any discussions or negotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries, provide access to any of the properties, books, records or employees of the Company or its Subsidiaries or take any other action, in each such case regarding or to facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which proposal that constitutes, or would may reasonably be expected to lead to, a Company Acquisition any Takeover Proposal, (Biii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreementsimilar agreement or commitment with respect to any Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, arrangement approve, endorse or understandingresolve to recommend or approve any Takeover Proposal, except in each case relating as otherwise specifically provided in Section 7.2(c); (iv) grant any waiver or release under any standstill or similar agreement; (v) take any action to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an exempt any Person from the restrictions on “Alternative Company Acquisition Agreement”), (D) enter into, continue business combinations” contained in Section 203 of Delaware Law or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposalcause such restrictions not to apply, or (Evi) agree authorize or direct any Company Representative to do take any of the foregoingsuch action; provided, however, that nothing contained in this Section 7.2(a) or any other provision hereof shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with its outside counsel, is required under applicable Law in order to comply with its fiduciary duties, or (C) notifying any Person solely of the existence of and restrictions under the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b) or (c), withdraw or modify, or propose to the public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend any Takeover Proposal, or enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, the Company shall, and it shall cause the Company Representatives and its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding any of the foregoing restrictions set forth in this Section 7.2(a), nothing in this Agreement shall prevent the Company or the Company Board from furnishing (or causing to be furnished), prior to, but not after, the time the vote is taken with respect to the approval of the Company Voting Proposal at the Company Meeting, information concerning its business, properties or assets, which information is not of greater scope, area or detail than was provided to Parent, to any Person or group pursuant to a confidentiality agreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such Person or group who has made a bona fide, written Takeover Proposal, but only if, : (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Person who has made a Takeover Proposal prior to the receipt date of this Agreement shall be considered a new Takeover Proposal made after the date of this Agreement) and none of the Company Stockholder ApprovalCompany, following its Subsidiaries and their representatives has violated any of the receipt restrictions set forth in this Section 7.2 (other than immaterial violations that have not (1) directly or indirectly resulted in the making of such Takeover Proposal or (2) otherwise had an adverse impact on Parent’s rights under this Section 7.2) with respect to such Person making the Takeover Proposal; (x) such Person or group has submitted a bona fide written Company Acquisition Takeover Proposal that the Company Board has determined (after consultation with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is more favorable to the Company’s stockholders from a financial point of view than the Merger and is reasonably likely to lead to a Superior Proposal; and (y) the Company Board determines in good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s outside financial advisors stockholders under applicable Law. The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of, any confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights. The Company will promptly (and outside legal counselin any event within one (1) Business Day) notify Parent telephonically and in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company that is or could reasonably be expected to lead constitute a Takeover Proposal, and the Company will promptly communicate in writing to Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry which it may receive and a copy thereof and the identity of the Person making the same. The Company shall inform Parent within one (1) Business Day after any change to the material terms of any such Takeover Proposal. Within one (1) Business Day after any determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Merger Sub a written notice advising them of such determination, specifying the terms and conditions of such Superior Proposal and that was not solicited in violation the identity of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Superior Proposal, and providing Parent and Merger Sub with a copy of the Superior Proposal. The Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior will promptly provide to furnishing, or causing to be furnished, Parent any such nonpublic non-public information relating to concerning the Company provided to such Person, the Company enters into a confidentiality agreement with the any other Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does or group which was not contain any provision that would prevent the Company from complying with its obligation previously provided to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Parent.
(b) Notwithstanding anything Neither the Company Board nor any committee thereof shall withdraw or modify, or propose to the contrary public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, in this Agreement, prior a manner adverse to the receipt of the Company Stockholder ApprovalParent or Merger Sub, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition ProposalRecommendation, unless the Company Board concludes shall have determined in good faith, after consultation with the Company’s its outside financial advisors and outside legal counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law.
(c) Neither the Company Board nor any committee thereof shall (i) approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend, any Takeover Proposal or (ii) enter into any Alternative Acquisition Proposal constitutes Agreement (other than a confidentiality agreement expressly permitted by and in accordance with Section 7.2(a)). Notwithstanding the foregoing, prior to, but not after, the time the vote is taken with respect to the adoption of this Agreement at the Company Meeting, the Company Board may make a change in the Company Board Recommendation in a manner adverse to Parent or Merger Sub (a “Change in Company Recommendation”) and/or approve or recommend a Superior Proposal; , and, in connection with such Superior Proposal, make any approvals, consents or actions to exempt such Takeover Proposal from any Takeover Statute, and the Company may enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in connection with the termination of this Agreement, in each case if (IIIA) the Company shall have received a Superior Proposal which is pending at the time the Company determines to take such action, (B) the Company Board concludes shall have determined in good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board stockholders under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
Law and (iC) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after Business Days shall have passed following Parent’s receipt of written notice from the Company (the “Adverse Recommendation Notice”) advising Parent that the Company Board provides written notice of has received such new a Superior Proposal which it intends to accept or recommend or advising Parent that it intends to make a Change in Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; providedRecommendation, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and specifying the material terms and conditions of any such inquiries, proposals or offers Superior Proposal and the other information required by Section 7.2(a) (it being understood and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of agreed that any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes amendment to the status and financial terms or other material terms of such Superior Proposal shall require a new Adverse Recommendation Notice and a new three (3) Business Day period), and Parent does not make an offer within such three (3) Business Day period that the Company Board shall have concluded in its good faith judgment, after consultation with its financial advisors and its outside counsel, is at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that the Company Board shall convene a meeting to consider any such inquiriesoffer by Parent promptly following the receipt thereof and that the Company Board will not withhold, proposals withdraw or offers (including any material amendments thereto or any change modify its recommendation to the scope Company’s stockholders in favor of the Company Voting Proposal until the earlier of the receipt of Parent’s revised offer or material terms or conditions thereof, and including copies three (3) Business Days after receipt by Parent of any written inquiries, proposals or offers, including proposed agreements and material modifications theretothe Adverse Recommendation Notice).
(d) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned Subject to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date remainder of this Agreement. From and after Section 5.02, from the date of this Agreement until the earlier to occur of the Effective Time or and the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article VII, the Company shall not, nor not and shall it not cause or permit any of its Subsidiaries to, nor and shall it not authorize or knowingly permit any of its Representatives or its Subsidiaries’ Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition ProposalProposal (as defined below), (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, arrangement or understanding, in each case relating similar agreement with respect to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)Proposal, (Diii) enter intosolicit, continue knowingly encourage, participate, engage in or otherwise participate assist in any manner any discussions or negotiations regarding any Company Acquisition Proposalregarding, or furnish to any person (Eother than Parent or its Representatives) agree any information with respect to, or knowingly take any other action to do facilitate any inquiries or the making of the foregoing; providedany proposal that constitutes, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could may reasonably be expected to lead to, any Acquisition Proposal or (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, render the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to the Person making such Company any Acquisition Proposal and engage or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in discussions the Company Rights Agreement) under the terms of the Company Rights Agreement or negotiations with such Person regarding such allow the Company Acquisition Proposal; provided, that (1) Rights to expire prior to furnishing, or causing their expiration date (all such actions in this subclause (A) are collectively referred to be furnished, any such nonpublic information relating to the as “Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality AgreementRights Agreement Modifications”) that or (xB) does not contain exempt any provision that would prevent person (other than Parent or Merger Sub) from the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive restrictions on such Person than those “business combinations” contained in Section 203 of the Confidentiality Agreement DGCL (or any similar provision) or otherwise cause or permit such restrictions not to apply (all such actions in this subclause (B) are collectively referred to as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its RepresentativesDGCL 203 Modifications”).
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a breach of this Section 5.02, if the Company Board may effect a Company Adverse Recommendation Change if (determines in good faith after consultation with its outside legal counsel and only if): (I) (A) a written Company financial advisors, that such Acquisition Proposal that was not solicited constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in violation of Section 5.02(asubsection (h) is made below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposalthan, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Confidentiality Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the delivery Company or having the effect of such notice and any amendment or update thereto and prohibiting the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Changefrom satisfying its obligations under this Section 5.02), which notice shall include(y) furnish, as applicableand authorize and permit its Representatives to furnish, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of and its Subsidiaries to the person making such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following negotiations with such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board person and its Representatives have negotiated in good faith with regarding any such Acquisition Proposal.
(c) The Company shall notify Parent (to the extent Parent desires to negotiate“Notice of Proposal”) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period promptly as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors practicable (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours hours) after receipt by the Company or any of occurrence) notify its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of this Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such new Company Acquisition Proposal discussions or negotiations and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; providedany modifications to such inquiries, howeverproposals, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent offers or requests, and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify provide to Parent in writing a copy of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers all written (and providing copies a summary in reasonable detail of all related written oral) inquiries, proposals or offers, including proposed agreementsrequests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or enter into, 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 constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that taking such action is necessary to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to make an Adverse Recommendation Change, or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to Section 7.01(c), or make Company Rights Agreement Modifications or DGCL 203 Modifications with respect to the acquisition of Company Common Stock pursuant to such Superior Proposal; provided, however, that the Company Board shall not make an Adverse Recommendation Change, approve or recommend the Superior Proposal or terminate this Agreement pursuant to Section 7.01(c) or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the end of such period the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) thereafter In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Section 5.02 shall keep Parent reasonably informed, on prohibit the Company from taking and disclosing to the Company Stockholders a reasonably prompt basis (andposition contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company Stockholders if, in the good faith judgment of the Company Board, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change or take any eventof the actions referred to in clause (iv) of Section 5.02(a) except, within 24 hoursin each case to the extent permitted by Section 5.02(e).
(g) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person or group (as such term is defined under Section 13(d) of the status Exchange Act) (other than Parent or Merger Sub) relating to (i) any direct or indirect acquisition or purchase of more than 15% of the outstanding shares of Company Common Stock; (ii) any material discussions tender offer or negotiations with respect exchange offer that, if consummated, would result in any person or group beneficially owning more than 15% of the outstanding shares of Company Common Stock; (iii) the direct or indirect acquisition of assets of the Company that generate or constitute 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company or any Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X) of the Company; and (v) any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or any Subsidiary of the Company (including for this purpose the outstanding equity securities of the Subsidiaries of the Company) for consideration equal to any such inquiries, proposal 15% or offers and more of the details aggregate fair market value of any material changes all of the shares of Company Common Stock outstanding on the date prior to the status and material terms of any such inquiriesdate hereof, proposals or offers (including any material amendments thereto or any change to but in each case other than the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC)
No Solicitation. (a) The Company shallshall not, and shall cause its Subsidiaries to not to, and shall request not authorize or permit its and its Subsidiaries’ respective directors, officers, employees, advisors and investment bankers (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) to, directly or indirectly, solicit, initiate, respond to, continue or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that its Representativescould reasonably be expected to lead to any Takeover Proposal, immediately cease or, subject to Section 6.04(b), (i) conduct or engage in any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned disclose any non-public information relating to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (ii) (A) 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 of its Subsidiaries or (B) approve any transaction under, or any third party becoming an “interested shareholder” under, Chapter 302A.673 of the MBCA, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract contemplating, providing for or otherwise relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Subject to Section 6.04(b), neither the Company Board nor any committee thereof shall (1) fail to make, withdraw, withhold, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, including by failing to include the Company Board Recommendation in the Schedule 14D-9 or failing to permit Parent and Merger Sub to include the Company Board Recommendation in the Offer Documents, (2) fail to publicly reaffirm the Company Board Recommendation within ten Business Days after Parent so requests in writing (it being understood and agreed that the Company will have no obligation to make such reaffirmation more than once in any thirty (30) day period, unless a Takeover Proposal has been publicly disclosed and not withdrawn at the time of such request by Parent), (3) approve, adopt, endorse, declare advisable or recommend a Takeover Proposal (or fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Takeover Proposal), (4) take any action to exempt any Person (other than Parent and its Affiliates) from any applicable “control share acquisition,” “fair price,” “business combination,” “moratorium” or other applicable anti-takeover Law, (5) make any public statement inconsistent with the Company Board Recommendation or (6) publicly propose or publicly communicate any intention to do any of the foregoing (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal (or any communications, negotiations or discussions that could reasonably be expected to lead to any Takeover Proposal) and shall use its reasonable best efforts to cause any such Persons not tothird party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy all such information. Without limiting the foregoing, the Company will terminate access by any third party to any physical or electronic data room relating to any potential Takeover Proposal.
(b) Notwithstanding Section 6.04(a), prior to the Offer Closing, the Company Board, directly or indirectlyindirectly through any Representative, may, subject to Section 6.04(c) (Ai) solicitparticipate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, initiate unsolicited written Takeover Proposal, not resulting from or knowingly encourage (including by way attributable to any breach of furnishing information which has not been previously publicly disseminated)this Section 6.04, or knowingly facilitate any inquiry or that the making or submission of any inquiryCompany Board believes in good faith, proposalafter consultation with outside legal counsel and the Company Financial Advisor, indication of interest or offer which constitutes, constitutes or would reasonably be expected to lead to, result in a Company Acquisition Superior Proposal, (Bii) subject thereafter furnish to Section 5.02(bsuch third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), approve or recommend, or publicly propose and/or (iii) take any action that any court of competent jurisdiction orders the Company to approve or recommend, a Company Acquisition Proposal, take (C) subject to Section 5.02(bwhich order remains unstayed), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, but in each case relating referred to a Company Acquisition Proposal in the foregoing clauses (other than an Acceptable Company Confidentiality Agreementi) or a Company Superior Proposal through (each an “Alternative Company Acquisition Agreement”iii), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that only if the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties to the Company’s shareholders under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law; provided that (x) no Company Adverse Recommendation Change would may be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and made unless the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply have first complied with the provisions of its obligations under this Section 5.02(b6.04 (specifically including Section 6.04(d)) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) making such disclosure shall not in any way limit or modify the event there is a Company Adverse Recommendation Change made in compliance with effect, if any, that any such disclosure has under this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)6.04 or under ARTICLE VIII.
(c) In addition to the obligations of The Company shall notify Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and but in any no event within 24 later than twenty-four (24) hours) notify Parent in writing after it obtains Knowledge of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the receipt by the Company (or any of its Representatives) of any Takeover Proposal or any indication, request or other communication that could reasonably be expected to lead to any Takeover Proposal (or of any material modification, supplement or amendment to any of the foregoing), indicating, in connection with . In such notice, the identity Company shall identify the third party making, and details of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of of, any such inquiriesTakeover Proposal, proposals indication or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter request. The Company shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) fully informed of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiriesTakeover Proposal, proposals indication, request or offers (other communication, including any material amendments thereto or any change proposed amendments as to the scope or price and other material terms or conditions thereof, . The Company shall provide Parent with at least seventy-two (72) hours prior notice of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Takeover Proposal. The Company shall promptly provide Parent with a list and including copies of any written inquiriesnon-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. The Company will not enter into any confidentiality agreement or other Contract with any Person that prohibits the Company from providing such information to Parent in accordance with this Section 6.04 or otherwise prohibits the Company from complying with its obligations under this Section 6.04.
(d) Except as set forth in this Section 6.04(d), the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least three (3) Business Days (the “Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company Board determines in good faith, after consulting with outside legal counsel and its Company Financial Advisor, that (A) such Takeover Proposal constitutes a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement and/or the Financing Letters, and (B) the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties to the Company’s shareholders under applicable Law and (iv) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into a Company Acquisition Agreement with respect to such Takeover Proposal, the Company shall have validly terminated this Agreement in accordance with Section 8.04(a) and shall have paid the Termination Fee to Parent in accordance with the applicable provisions of Section 8.06. The Company shall, and shall cause its financial and legal Representatives to, during the Notice Period, permit Parent to make proposals to the Company Board regarding adjustments in the terms and conditions of this Agreement and/or the Financing Letters, and negotiate in good faith with Parent with respect thereto, so that the applicable Takeover Proposal ceases to constitute a Superior Proposal if Parent, in its discretion, proposes to make such adjustments (it being understood and agreed that there may be multiple extensions of the Notice Period). The Company shall, and shall cause its financial and legal Representatives to, keep confidential any adjustments in the terms and conditions of this Agreement and/or the Financing Letters proposed by Parent, other than in the event of an actual amendment to this Agreement and/or the Financing Letters (or offersto the extent required by applicable Law to be disclosed by the Company). For the avoidance of doubt the provisions of this Section 6.04(d) shall also apply to any material modification, including proposed agreements supplement or amendment to any Takeover Proposal and material modifications thereto)require a new Notice Period, except that the reference to three (3) Business Days shall be deemed to be two (2) Business Days.
(e) The Company agrees that in the event that any Subsidiary or Representative of the Company takes any action which, if taken by the Company, would constitute a breach of this Section 6.04, the Company shall be deemed to be in breach of this Section 6.04.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
No Solicitation. During the period commencing on the date hereof and ending on the Termination Date, except for the matters set forth on Schedule 6.1(b):
(a) The Neither any Seller, any Acquired Company nor any of its or their respective Affiliates shall, and each of the foregoing shall cause not allow any Person acting on its Subsidiaries to and shall request that its Representativesbehalf to, immediately cease (i) any communicationsdirectly or indirectly, continue, initiate, encourage, solicit or participate in discussions or negotiations with with, or provide any Person that may be ongoing with respect to a Company Acquisition Proposalnonpublic information to, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives the Buyer and its representatives in connection with the Company’s Representativestransactions contemplated by this Agreement or the other Transaction Documents) concerning (i) any information sale of assets of any Acquired Company (other than in the ordinary course of its business and consistent with past practice), (ii) any sale of any securities of any Acquired Company including, without limitation, the Acquired Company Securities, the HUD Company Securities or the Casablanca Units, (iii) any other transaction including, without limitation, a merger, consolidation, recapitalization, liquidation or similar transaction, directly involving any Acquired Company (collectively, an “Acquisition Transaction”) or (iv) enter into any agreement, understanding or arrangement with respect to a Company an Acquisition Proposal Transaction. In addition to the foregoing, no Seller shall agree to engage in any Acquisition Transaction unless the terms thereof expressly exclude the Acquired Companies and the transactions contemplated by the Transaction Documents. Sellers shall advise their financial advisors of Sellers’ obligations pursuant to this Section 6.4 and instruct such advisors not to take any action in contravention hereof.
(iiib) cooperating withSellers shall, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicableand each of them, shall request to have returned cause each Acquired Company to, promptly communicate to the Company Buyer within three (3) Business Days following receipt the terms of any proposal that any of its officers, directors or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring Persons serving in the six (6) months prior to the date of this Agreement. From and similar capacities may receive after the date of this Agreement until in respect of an Acquisition Transaction. Any notification under this Section 6.4(b) shall include the earlier to occur identity of each Person making such proposal, the terms of such proposal and any other information with respect thereto as the Buyer may reasonably request.
(c) Sellers hereby agree that a monetary remedy for a breach of the Effective Time or agreements set forth in this Section 6.4 will be inadequate and impracticable, and that any such breach would cause the date of termination of this Agreement in accordance with ARTICLE 9, Buyer and its Affiliates irreparable harm. In the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt event of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation breach of this Section 5.02(a) made after 6.4, in addition to any other remedies available to the date Buyer, without the requirement of this Agreementposting any bond or other security, the Company mayBuyer shall be entitled to seek equitable remedies in a court of competent jurisdiction regarding this Section 6.4, in response to such Company Acquisition Proposalincluding, and subject to compliance with Section 5.02(b)without limitation, furnish information the equitable remedy of specific performance with respect to the Company provisions of this Section 6.4, and shall be entitled to such injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, as a court of competent jurisdiction shall determine with respect to any such breach of the Person making such Company Acquisition Proposal and engage agreements set forth in discussions or negotiations with such Person regarding such Company Acquisition Proposalthis Section 6.4; provided; however, that, in the event that the Buyer terminates this Agreement pursuant to Section 10.1(a)(iii), the Buyer’s sole and exclusive remedy in respect of such termination (1) prior to furnishing, or causing to be furnishedincluding any breach by Sellers, any such nonpublic information relating to Acquired Company or any of their respective Affiliates of the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to agreements set forth in this Section 5.02 6.4) shall be to pursue an action against Sellers for Damages as provided in Section 10.2, and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution neither any Seller, any Acquired Company nor any of their respective Affiliates shall have any further obligations or liabilities under this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but except as otherwise provided in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Section 10.2.
(bd) Notwithstanding anything to For the contrary in this Agreementavoidance of doubt, prior to the receipt any breach by a Seller, any Acquired Company or any of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation their respective Affiliates of any provision of Section 5.02(a6.4(a) is made to the Company by a Third Party and such Company Acquisition Proposal that is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least cured within five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment Business Days shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal material breach of this Agreement and, for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval exercise by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Buyer of its termination rights pursuant to Section 5.02(b) with respect to a Company Superior Proposal10.1(a)(iii), the Company after such cure period such breach shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition be deemed incapable of being cured prior to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Termination Date.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Capitalsource Inc), Securities Purchase Agreement (Omega Healthcare Investors Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after Following the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance shall immediately cease any discussions or negotiations with Section 5.02(b), furnish information any Person or group that may be ongoing with respect to any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities). From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, directly or indirectly: (a) solicit, initiate, encourage, facilitate or permit the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry relating to the Person making such Company or any of its Subsidiaries (other than the Excluded Entities) or take any action that could reasonably be expected to lead to an Acquisition Proposal and or Acquisition Inquiry relating to the Company or any of its Subsidiaries; (b) request or receive any non-public information from any Person or provide any non-public information to any Person in connection with an Acquisition Proposal or Acquisition Inquiry relating to the Company or any of its Subsidiaries (other than the Excluded Entities); (c) engage in discussions or negotiations with such any Person regarding such Company with respect to any Acquisition Proposal; provided, that (1) prior to furnishing, Proposal or causing to be furnished, any such nonpublic information Acquisition Inquiry relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its RepresentativesSubsidiaries (other than the Excluded Entities); (d) approve, indicating, in connection with such noticeendorse or recommend any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities); or (e) enter into any letter of intent or similar document or any Contract contemplating or providing for any Acquisition Transaction or any Acquisition Proposal relating to the Company or any of its Subsidiaries (other than the Excluded Entities). Without limiting the generality of the foregoing, the identity Company acknowledges and agrees that any action taken by its representatives that, if taken by the Company would constitute a breach of this Section 8.2, shall be deemed to constitute a breach of this Section 8.2 by the Company (whether or not such representative is purporting to act on behalf of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications theretoCompany).
Appears in 2 contracts
Sources: Business Combination Agreement (Boulevard Acquisition Corp. Ii), Business Combination Agreement (Boulevard Acquisition Corp. Ii)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or knowingly permit any of its Representatives to officer, director or employee of, or any investment banker, attorney or other advisor or representative (and shall use reasonable best efforts to cause such Persons not collectively, “Representatives”) of, the Company or any Company Subsidiary to), directly or indirectly, (Ai) solicit, initiate or initiate, knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action to knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any agreement, letter of intent, memorandum of understanding, merger agreement term sheet or other agreement, arrangement similar instrument with respect to any Company Takeover Proposal or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (Diii) enter into, continue continue, conduct, engage or otherwise participate in any discussions or negotiations regarding regarding, furnish to any person any information with respect to, or otherwise knowingly take any action to facilitate, any proposal that could reasonably be expected to lead to a Company Takeover Proposal. The Company shall, and shall cause the Company Subsidiaries and direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any person conducted heretofore with respect to any Company Acquisition Proposal, Takeover Proposal and shall request the prompt return or (E) agree to do any destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing; provided, however, if, prior to the receipt acceptance for payment of shares of Company Common Stock pursuant to the Offer, the Company Stockholder Approvaland its Representatives may, following the receipt of in response to a bona fide written Company Acquisition Takeover Proposal that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors and outside legal counseladvisor, is constitutes or could reasonably be expected to lead to a Superior Company Superior Proposal, and which Company Takeover Proposal and that was not solicited in violation of this Section 5.02(a) made after the date hereof and did not result from a breach of this Agreement, the Company may, in response to such Company Acquisition ProposalSection 5.03(a), and subject to compliance with Section 5.02(b5.03(c), (x) provide access or furnish information with respect to the Company and the Company Subsidiaries to the Person person making such Company Acquisition Takeover Proposal and engage its Representatives pursuant to an Acceptable Confidentiality Agreement and (y) participate in discussions or negotiations (including solicitation of a revised Company Takeover Proposal) with such Person person and its Representatives regarding such Company Acquisition Takeover Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the . The Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to will provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent U.S. Parent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any all non-public information with regard regarding the Company that has not previously been provided to Parent or U.S. Parent that is provided to any person making such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
No Solicitation. (a) The Company shallExecutive hereby agrees that, shall cause its Subsidiaries to if his employment hereunder is terminated by AAI and shall request that its Representatives, immediately cease (i) any communications, discussions the Corporation for Cause or negotiations with any Person that may be ongoing with respect by the Executive prior to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives Change in Control and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date otherwise under Section 6.4 of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company he shall not, nor shall it permit any for twelve (12) months after the Date of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to)Termination, directly or indirectly, divert, solicit or take away the patronage of (Aa) solicitany customers or agents of the Corporation, initiate AAI or knowingly encourage (including by way any Affiliate of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or either as of the making or submission relevant Date of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition ProposalTermination, or (Eb) agree to do any prospective customers or agents of the foregoing; providedCorporation, howeverAAI or any Affiliate whose business the Corporation and/or AAI was actively soliciting on the relevant Date of Termination, ifand with which the Executive had business contact while employed by the Corporation and AAI. The Executive agrees that, prior to under the receipt circumstances and conditions described above and for the same period of time, the Executive shall not, directly or indirectly, induce or solicit any employees or agents of the Company Stockholder ApprovalCorporation, following the receipt AAI or any Affiliate of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation either to leave or terminate their employment or agency relationship with the Company’s outside financial advisors Corporation or AAI. The Corporation and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and AAI agrees that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) any announcement made by the Company Board provides Parent Executive, at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment press conference or update thereto and the determination to so deliver such noticein any press release or through individual notices, update or amendment shall not, by in and of itself, constitute a Company Adverse Recommendation Change)an attempt directly or indirectly to induce, which notice shall includedivert, as applicablesolicit or take away customers or employees, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations announcement creates no presumption with respect to any such inquiriesinducement, proposal diversion, solicitation or offers taking, and (iii) in all cases both the burden of production of evidence and the details ultimate burden of persuasion with respect to any material changes allegations or claims that this Section 10.2 has been breached or violated by the Executive shall be borne by AAI and the Corporation. Executive agrees that all restrictions and agreements contained in this Section 10, including without limitation, those relating to duration and restricted territory, are necessary and fundamental to the status and material terms protection of any such inquiriesthe business of AAI, proposals or offers (including any material amendments thereto the Corporation or any change Affiliate, and are reasonable and valid, and all defenses to the scope or material terms or conditions thereofstrict enforcement thereof by Executive are hereby waived. Executive agrees that the remedy at law for such breach of this Agreement will be inadequate, and including copies that the damages from such breach are not readily susceptible to being measured in monetary terms. Accordingly, Executive agrees that upon breach of this ▇▇▇▇▇▇▇ ▇▇, ▇▇▇, the Corporation or any written inquiriesAffiliate shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened further breach. Nothing in this Agreement shall be deemed to limit AAI’s, proposals the Corporation’s or offersany Affiliate’s remedies at law or in equity for any breach by Executive or any of the provisions of this Agreement that may be pursued or availed of by AAI, including proposed agreements and material modifications thereto)the Corporation or any Affiliate.
Appears in 2 contracts
Sources: Employment Agreement (Ascent Assurance Inc), Employment Agreement (Ascent Assurance Inc)
No Solicitation. (a) The Immediately upon execution of this Agreement, the Company shall, shall (and shall cause its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries (except as set forth in the proviso to this sentence) and other communications relating to any potential business combination with all third parties who, prior to the date hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal (as hereinafter defined) with the Company; PROVIDED that, if any such inquiries are made after the date hereof, the Company shall respond by stating that it is a party to a binding agreement with Parent and is prohibited thereby from further responding to such inquiries.
(b) Prior to termination of this Agreement pursuant to Article VII hereof, the Company and its Subsidiaries to and shall request that not, nor shall the Company authorize or permit any officers, directors or employees of, or any investment bankers, attorneys or other agents or representatives retained by or acting on behalf of, the Company or any of its RepresentativesSubsidiaries to, immediately cease (i) initiate, solicit or encourage, directly or indirectly, any communications, discussions inquiries or negotiations with the making of any Person proposal that may be ongoing with respect to a Company constitutes an Acquisition Proposal, (ii) furnishing to any Person (other than Parentexcept as permitted below, Merger Subengage or participate in negotiations or discussions with, their respective Representatives and the Company’s Representatives) or furnish any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating inor data to, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed take any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries other action to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiryproposal by, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case third party relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (Eiii) agree except as permitted below, enter into any agreement with respect to do any Acquisition Proposal or approve an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Section 5.6 or in any other provision of the foregoing; provided, however, ifthis Agreement, prior to the receipt Company Stockholders Meeting, the Company Board may participate in discussions or negotiations with or furnish information to any third party making an unsolicited Acquisition Proposal (a "POTENTIAL ACQUIROR") or approve or recommend an unsolicited Acquisition Proposal if both (A) a majority of the directors of the Company Stockholder ApprovalBoard, following without including directors who may be considered Affiliates (as defined in Rule 405 under the receipt Securities Act) of any person making an Acquisition Proposal ("DISINTERESTED DIRECTORS") determines in good faith, after receiving advice from its independent financial advisor, that a bona fide written Potential Acquiror has submitted to the Company an Acquisition Proposal that is a Superior Proposal (as hereinafter defined), and (B) a majority of the disinterested directors of the Company Board determines in good faith, after consultation receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firm of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is so experienced), that the failure to participate in such discussions or negotiations or to furnish such information or to approve or recommend such unsolicited Acquisition Proposal is inconsistent with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and Board's fiduciary duties under applicable law. In the event that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company shall receive any Acquisition Proposal, it shall promptly (and subject in no event later than 24 hours after receipt thereof) furnish to compliance with Section 5.02(b), furnish information with respect to Parent the Company to identity of the Person making such Company recipient of the Acquisition Proposal and engage in discussions or negotiations with of the Potential Acquiror, the terms of such Person regarding such Company Acquisition Proposal; provided, that (1) prior copies of all information requested by the Potential Acquiror, and shall further promptly inform Parent in writing as to furnishing, or causing the fact such information is to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement provided after compliance with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would terms of the preceding sentence. Nothing contained herein shall prevent the Company from complying with its obligation Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to provide an Acquisition Proposal or making any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that the Company's stockholders if, in the aggregate are no less restrictive on good faith judgment of the Company Board, after receiving advice from reputable outside legal counsel experienced in such Person than those contained in matters (and the Confidentiality Agreement as in effect immediately prior to parties hereto agree that the execution law firm of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is so experienced), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Persondisclosure is required by applicable law. Without limiting the foregoing, the Company furnishes such nonpublic information to Parent (to understands and agrees that any violation of the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary restrictions set forth in this AgreementSection 5.6(b) by the Company or any of its Subsidiaries, prior to the receipt or by any director or officer of the Company Stockholder Approvalor any of its Subsidiaries or any financial advisor, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn attorney or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties other advisor or representative of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention Subsidiaries, whether or not such person is purporting to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail act on behalf of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)any of its Subsidiaries or otherwise, the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will shall be deemed to be a new Company Acquisition Proposal for purposes breach of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence5.6(b) notify sufficient to enable Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless terminate this Agreement has been terminated in accordance with pursuant to Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y7.1(d)(i) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)hereof.
(c) In addition to For the obligations purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any proposal, whether in writing or otherwise, made by any person other than Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company its Subsidiaries to acquire "beneficial ownership" (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hoursas defined under Rule 13(d) of the status Exchange Act) of 20% or more of the assets of, or 20% or more of the outstanding capital stock of any material discussions of the Company or negotiations with respect its Subsidiaries pursuant to any such inquiriesa merger, proposal consolidation, exchange of shares or offers and other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the details of any material changes to the status and material terms of any such inquiries, proposals Company or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Adc Telecommunications Inc), Merger Agreement (Adc Telecommunications Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier first to occur of the Effective Time or and the date of termination of this Agreement in accordance with ARTICLE Article 9, except as specifically permitted in Section 5.2(c), Section 5.2(e) or Section 5.2(f)(ii), the Company shall not, nor shall it authorize or permit any of its the Company Subsidiaries or the Company Representatives to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, : (Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated)any inquiries, offers or proposals that constitute, or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would are reasonably be expected likely to lead to, a Company any Acquisition Proposal; (ii) engage in discussions or negotiations with, (B) subject furnish or disclose any information or data relating to Section 5.02(b), approve the Company or recommendany of the Company Subsidiaries to, or publicly propose in response to approve a request therefor, give access to the properties, assets or recommendthe books and records of the Company or the Company Subsidiaries to, a Company any Person that has made or, to the knowledge of the Company, may be considering making any Acquisition Proposal or otherwise in connection with an Acquisition Proposal; (iii) grant any waiver or release under any standstill or similar contract with respect to any Company Common Stock or any properties or assets of the Company or the Company Subsidiaries; (iv) approve, endorse or recommend any Acquisition Proposal; (Cv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intentagreement in principle, memorandum of understandingarrangement, merger agreement understanding or other agreement, arrangement or understanding, in each case contract relating to a Company any Acquisition Proposal Proposal; or (vi) take any action to exempt or make not subject to any state takeover statute or state Law that purports to limit or restrict Business Combinations or the ability to acquire or vote shares, any Person (other than an Acceptable Company Confidentiality AgreementParent and the Parent Subsidiaries) or a Company Superior Proposal any action taken thereby, which Person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom.
(each an “Alternative Company Acquisition Agreement”b) Except as specifically permitted in Section 5.2(c) and Section 5.2(d), (D) enter intothe Company shall, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any and shall cause each of the foregoing; providedCompany Subsidiaries and instruct the Company Representatives to, howeverimmediately cease any existing solicitations, ifdiscussions, negotiations or other activity with any Person being conducted with respect to any Acquisition Proposal on the date hereof. The Company shall promptly inform the Company Representatives who have been engaged or are otherwise providing assistance in connection with the transactions contemplated by this Agreement of the Company’s obligations under this Section 5.2.
(c) Notwithstanding anything in this Section 5.2 or elsewhere in this Agreement to the contrary, prior to obtaining the receipt of Required Company Vote, nothing in this Agreement shall prevent the Company Stockholder Approval, following the receipt or its Board of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(aDirectors from:
(i) made after the date of this Agreement, engaging in discussions or negotiations with, or furnishing or disclosing any information or data relating to, the Company mayor any of the Company Subsidiaries or, in response to a request therefor, giving access to the properties, assets or the books and records of the Company or any of the Company Subsidiaries to, any Person who has made a bona fide written and unsolicited Acquisition Proposal after the date hereof if the Company’s Board of Directors determines that such Company Acquisition Proposal is reasonably likely to result in a Superior Proposal, but only so long as (x) the Company’s Board of Directors has acted in good faith and subject determined (A) after consultation with its financial advisors, that such Acquisition Proposal is reasonably likely to compliance result in a Superior Proposal and (B) after consultation with Section 5.02(b)its outside legal counsel, furnish information with respect that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company to and the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to stockholders of the Company to such Person, under applicable Laws; and (y) the Company (A) enters into a confidentiality agreement with the such Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation on terms and conditions no more favorable to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement and (B) has previously disclosed or concurrently discloses or makes available the same information to Parent as it makes available to such Person in effect immediately prior accordance with Section 5.2(d); and
(ii) subject to compliance with Section 5.2(c)(i), entering into a definitive agreement with respect to a Superior Proposal (and taking any action under any state takeover Law in connection with such Superior Proposal), but only so long as the execution Company’s Board of this Agreement Directors, acting in good faith has (providedI) approved such definitive agreement, (II) determined, after consultation with its financial advisors, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company bona fide written and unsolicited Acquisition Proposal constitutes a Superior Proposal), and (2III) promptly (but determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in any event within 24 hours) following furnishing any such nonpublic information a breach of its fiduciary obligations to such Person, the Company furnishes such nonpublic information to Parent and the stockholders of the Company under applicable Laws, and (to B) the extent such nonpublic information has not been previously so furnished to Parent or its RepresentativesCompany terminates this Agreement pursuant to, and after complying with all of the provisions of, Sections 9.1(g) and 9.2(b).
(bd) If the Company or any of the Company Subsidiaries or the Company Representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal involving the Company and the Company is permitted to provide such Person with information pursuant to this Section 5.2, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, the information provided to such Person concurrently with its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent.
(e) The Board of Directors of the Company shall not (i) approve, endorse or recommend, or propose to approve, endorse or recommend, any Superior Proposal or (ii) enter into any agreement in principle or understanding or a contract relating to a Superior Proposal, unless the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Sections 9.1(g) and 9.2(b).
(f) Notwithstanding anything to the contrary in this Section 5.2 or elsewhere in this Agreement, prior to (i) the receipt Board of Directors of the Company Stockholder Approval, shall be permitted to disclose to the stockholders of the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company position with respect to an Acquisition Proposal that was not solicited in violation required by Rule 14e-2(a), Item 1012(a) of Section 5.02(aRegulation M-A or Rule 14d-9 promulgated under the Exchange Act, (ii) is made to the Board of Directors of the Company may withdraw, modify or amend its recommendation of the Merger and this Agreement by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case Board of a Company Acquisition Proposal, Directors of the Company Board concludes in good faithat any time if it determines, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s its outside legal counsel, that the failure to make take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company Adverse Recommendation Change would be inconsistent with and the fiduciary duties stockholders of the Company Board under applicable Law; providedLaws, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
and (iiii) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail Directors of the Company Intervening Event;
(ii) during the five (5) days following such written notice may take any action described in the foregoing clause Section 5.2(a)(iii) or (ivi) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faithif it determines, after consultation with the Company’s its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each casecounsel, that the failure to make take such action is reasonably likely to result in a breach of its fiduciary obligations to the Company Adverse Recommendation Change would be inconsistent with and the fiduciary duties stockholders of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h)Laws.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Double Eagle Petroleum Co), Merger Agreement (Petrosearch Energy Corp)
No Solicitation. (a) The Company shallshall not directly or indirectly do, shall cause its Subsidiaries to and shall request ensure that its Representativesno Representative of any of the Acquired Corporations directly or indirectly does, immediately cease any of the following: (i) solicit, initiate, encourage, induce or facilitate the communication, making, submission or announcement of any communications, Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person that may be ongoing with respect to a Company any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal, ; (iiv) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement similar document or understanding, in each case any Contract contemplating or otherwise relating to a Company any Acquisition Proposal Transaction; or (other than an Acceptable Company Confidentiality Agreementvi) release or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in permit the release of any discussions or negotiations regarding any Company Acquisition ProposalPerson from, or (E) agree waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement to do which any of the foregoingAcquired Corporations is a party or under which any of the Acquired Corporations has any rights; provided, however, ifthat, notwithstanding anything contained in this Section 4.3(a) (but subject to the other provisions of this Agreement), prior to the receipt adoption and approval of this Agreement by the Required Stockholder Vote, the Company may furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or negotiations with, or take any of the actions specified in clause (v) with respect to any Person in response to an unsolicited bona fide written Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if: (A) neither the Company nor any Representative of any of the Acquired Corporations shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.3; (B) the board of directors of the Company Stockholder Approval, following has determined in good faith (after consultation with its outside legal counsel and financial advisors) that the receipt of a bona fide written Company Acquisition Inquiry or the Acquisition Proposal that constitutes or is reasonably likely to lead to a Superior Offer, (C) the board of directors of the Company Board determines concludes in good faith, after consultation with having taken into account the Company’s outside financial advisors and advice of its outside legal counsel, that such action is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited required in violation order for the board of this Section 5.02(a) made after the date directors of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to comply with its fiduciary obligations to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition ProposalCompany’s stockholders under applicable Legal Requirements; provided, that (1D) at least two (2) business days prior to furnishing, or causing to be furnished, furnishing any such nonpublic information relating to to, or entering into discussions or negotiations with, or take any of the Company to actions specified in clause (v) with respect to, such Person, the Company enters gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into a discussions with, such Person; (E) the Company receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal containing provisions (an including nondisclosure provisions, use restrictions, non-solicitation provisions, no hire provisions and “Acceptable Company Confidentiality Agreement”standstill” provisions) that (x) does not contain any provision that would prevent at least as favorable to the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than as those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement Agreement; and (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibitF) the making of any Company Acquisition Proposal), and at least two (2) promptly (but in any event within 24 hours) following business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished by the Company to Parent Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or its Representatives)not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt If any Acquired Corporation or any Representative of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company any Acquired Corporation receives an Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company or Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or Inquiry at any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) time during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below)Pre-Closing Period, the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and then the Company shall promptly (but and in any no event within later than 24 hours after receipt of occurrencesuch Acquisition Proposal or Acquisition Inquiry) notify advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such new Company Acquisition Proposal or Acquisition Inquiry and the Parties shall comply with the provisions of this Section 5.02(b) with respect any modification or proposed modification thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition The Company shall immediately cease and cause to the obligations of Parent and the be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry.
(d) The Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals request each Person that has executed a confidentiality or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such notice, the identity Person by or on behalf of any of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Avalon Pharmaceuticals Inc), Merger Agreement (Clinical Data Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to Neither the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and the Company shall use reasonable its best efforts to cause such Persons its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, (A) encourage, solicit, participate in or initiate discussions or knowingly encourage negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (including other than Parent, any of its affiliates or representatives) concerning any proposal or offer to acquire all or a substantial part of the business and properties of the Company or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by way merger, tender offer, exchange offer, sale of furnishing information which has not been previously publicly disseminatedassets or similar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), except that nothing contained in this Section 5.4 or knowingly facilitate any inquiry other provision hereof shall prohibit the Company or the making Company's Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or submission of any inquiry, proposal, indication of interest or exchange offer which constitutesby a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or would reasonably be expected (ii) making such disclosure to lead tothe Company's stockholders as, a in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company Acquisition Proposalmay not, (B) subject to except as permitted by Section 5.02(b5.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or publicly propose to approve or recommend, a Company recommend any Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intentagreement with respect to any Acquisition Proposal. The Company will immediately cease any existing activities, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding with any Company Acquisition Proposal, or (E) agree parties conducted heretofore with respect to do any of the foregoing; provided, however, if.
(b) Notwithstanding the foregoing, prior to the receipt acceptance of Shares pursuant to the Offer, the Company Stockholder Approvalmay furnish information concerning the Company and its Subsidiaries to any corporation, following the receipt of partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written Company Acquisition Proposal that proposal to the Company relating to any such transaction which the Board determines in good faith, after consultation consulting with the Company’s outside financial advisors and outside legal counsela nationally recognized investment banking firm, is or could reasonably be expected to lead to represents a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect superior transaction to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto Offer and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; Merger and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to a Company Superior Proposalthe Company, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement failure to provide such information or access or to engage in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought would reasonably be expected to be initiated regarding such Company cause the Board of Directors to violate its fiduciary duties to the Company's shareholders under applicable law (an Acquisition Proposal with, which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company will immediately notify Parent of the Company (existence of any proposal or any of its Representatives), indicating, in connection with such noticeinquiry received by the Company, the identity of the Person party making 41 such proposal or group of Persons making the inquiry, and the terms (both initial and modified) of any such proposal or offer inquiry (and will disclose any written materials delivered in connection therewith) and the Company will keep Parent reasonably informed of the status (including amendments or proposed amendments) of any such proposal or inquiry. The Company will promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreementsthe proposal) and (ii) thereafter shall keep Parent reasonably informedif the Company has otherwise complied with the terms of this Section 5.4(b), on a reasonably prompt basis (and, in any event, within 24 hours) the Board of Directors may withdraw or modify its approval or recommendation of the status of any material discussions or negotiations Offer and may enter into an agreement with respect to a Superior Proposal, provided it shall concurrently with entering into such agreement pay or cause to be paid to Parent the Termination Fee (as defined below) plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.1(b). If the Company shall have notified Parent of its intent to enter into an agreement with respect to a Superior Proposal in compliance with the preceding sentence and has otherwise complied with such inquiriessentence, proposal or offers the Company may enter into an agreement with respect to such Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification) after the details expiration of the initial two business day period without any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)further notification.
Appears in 2 contracts
Sources: Merger Agreement (Riddell Sports Inc), Merger Agreement (Varsity Spirit Corporation)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to From the execution and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date delivery of this Agreement and until the earlier to occur of the Effective Time or the date of and termination of this Agreement in accordance with ARTICLE 9pursuant to Section 7.1 hereof, the Company Seagate and its Subsidiaries shall not, nor and they shall it permit cause their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons them not to), directly or indirectly, indirectly (Ai) solicit, initiate initiate, encourage or knowingly encourage induce the making, submission or announcement of any Seagate Acquisition Proposal (including by way of furnishing information which has not been previously publicly disseminatedas defined in Section 5.4(b) hereof), (ii) participate in any discussions or knowingly negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest proposal that constitutes or offer which constitutes, or would may reasonably be expected to lead to, a Company any Seagate Acquisition Proposal, (Biii) subject engage in discussions with any person with respect to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company any Seagate Acquisition Proposal, (Civ) subject to the terms of Section 5.02(b)5.2(c) hereof, approve approve, endorse or recommendrecommend any Seagate Acquisition Proposal, or publicly propose to approve or recommend, or execute or (v) enter into any letter of intentintent or similar document or any contract, memorandum of understanding, merger agreement or other agreement, arrangement commitment contemplating or understanding, in each case otherwise relating to a Company any Seagate Acquisition Proposal Transaction (other than an Acceptable Company Confidentiality Agreementas defined in Section 5.4(b) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”hereof), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to that until the receipt date on which this Agreement is approved by the requisite vote of the Company Stockholder Approvalstockholders of Seagate, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation terms of this Section 5.02(a5.4(a) made after the date of this Agreementshall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, the Company mayentering into a confidentiality or non-disclosure agreement with, or entering into discussions with, any person or group in response to a Seagate Superior Offer submitted by such Company Acquisition Proposal, person or group (and subject to compliance with not withdrawn) if (a) neither Seagate nor any agents or representative of Seagate and its Subsidiaries shall have violated any of the restrictions set forth in this Section 5.02(b5.4(a), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt Board of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation Directors of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board Seagate concludes in good faith, after consultation with the Company’s outside financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) action is necessary in order for the Company Board concludes in good faith, after consultation of Directors of Seagate to comply with its fiduciary obligations to the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties stockholders of the Company Board Seagate under applicable Law; provided, however, none (c) Seagate receives from such person or group an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such person or group by or on behalf of Seagate and containing terms no less favorable to the disclosing party than the terms of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Confidentiality Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information including with respect to any standstill arrangements, unless the Company Superior Proposal that is specified standstill arrangements in Section 5.02(c)the Confidentiality Agreement are waived and (d) prior to furnishing any such non-public information to such person or group, as well as a copy or entering into negotiations or discussions, Seller notifies Purchaser promptly of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public such information with regard to such Company Acquisition Proposal is requested from, or any such discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal or continued with, the Company (or any of its Representatives), representatives indicating, in connection with such notice, the identity name of the Person or group of Persons making the inquiry, proposal or offer person and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter furnishes such non-public information to Veritas to the extent such information has not been previously furnished to Veritas. Seagate and its subsidiaries shall keep Parent reasonably informedimmediately cease any and all existing activities, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with any parties conducted heretofore with respect to any such inquiriesSeagate Acquisition Proposal.
(b) For all purposes of and under this Agreement, the term "Seagate Acquisition Proposal" shall mean any offer or proposal (other than an offer or offers proposal by Veritas) relating to any Seagate Acquisition Transaction. For all purposes of and under this Agreement, "Seagate Acquisition Transaction" shall mean any transaction or series of related transactions, other than the transactions contemplated by this Agreement or the OD Documents, involving: (i) any acquisition or purchase from Seagate by any person or "group" (as defined under Section 13(d) of the Exchange Act and the details rules and regulations promulgated thereunder) of any material changes to more than fifteen percent (15%) in interest of the status and material terms total outstanding voting securities of any such inquiriesSeagate, proposals or offers (including any material amendments thereto or any change tender offer or exchange offer that if consummated would result in any person or "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (15%) of the total outstanding voting securities of Seagate, or any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the scope stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (15%) of the equity interests in the surviving or material terms resulting entity of such transaction; (ii) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or conditions thereofdisposition of more than fifteen percent (15%) of the assets and properties of Seagate; or (iv) any liquidation or dissolution of Seagate, and including copies excluding, in all cases any disposition of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)the assets covered by the OD Documents.
Appears in 2 contracts
Sources: Merger Agreement (Seagate Technology Malaysia Holding Co Cayman Islands), Agreement and Plan of Merger and Reorganization (Seagate Technology Holdings)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time Closing or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to its terms, the Company shall Seller will not, nor shall it permit any of and Seller will cause its Subsidiaries torespective Affiliates, nor shall it authorize or knowingly permit any of its Representatives to (shareholders, directors, officers, employees, investment bankers, attorneys, agents and shall use reasonable best efforts to cause such Persons representatives not to), directly or indirectly, indirectly (Aa) solicit, initiate entertain, negotiate, encourage, enter into or knowingly encourage consummate any Acquisition Proposal (including as defined herein) by way of furnishing information which has not been previously publicly disseminated)any person, entity, or knowingly facilitate group (other than Purchaser and its Affiliates, agents and representatives) or (b) share information concerning the Acquired Business or any inquiry or material part of the making or submission of any inquiry, proposal, indication of interest or offer which constitutesAcquired Business, or would reasonably be expected afford access to lead tothe properties, a Company Acquisition Proposal, (B) subject Books or Records of Seller relating to Section 5.02(b), approve or recommendthe Acquired Business, or publicly propose to approve otherwise assist or recommendfacilitate, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreementunderstanding with, arrangement any person, entity or understanding, in each case relating to a Company Acquisition Proposal group (other than an Acceptable Company Confidentiality Purchaser and its Affiliates, agents, and representatives) in connection with any Acquisition Proposal. For purposes of this Agreement) or a Company Superior Proposal (each , an “Alternative Company Acquisition Proposal” means any proposal or offer relating to any merger, consolidation, sale or license of substantial assets or similar transactions involving the Acquired Business (other than sales or licenses of assets or inventory in the Ordinary Course of Business or as permitted by this Agreement”). Seller will immediately cease any and all existing activities, (D) enter intodiscussions, continue or otherwise participate in any discussions or negotiations regarding with any Company Acquisition Proposal, or (E) agree parties conducted heretofore with respect to do any of the foregoing; provided, however, if, prior to the receipt . Seller will promptly (A) notify Purchaser if it receives any proposal or written inquiry or written request for information in connection with an Acquisition Proposal or potential Acquisition Proposal and (B) notify Purchaser of the Company Stockholder Approval, following the receipt terms and conditions of a bona fide written Company any such Acquisition Proposal that including the Company Board determines in good faithidentity of the party making an Acquisition Proposal. In addition, after consultation with the Company’s outside financial advisors from and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, until the Company may, in response earlier to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to occur of the Company to the Person making such Company Acquisition Proposal and engage in discussions Closing Date or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution termination of this Agreement (providedpursuant to its terms, that such agreement does Seller will not, and Seller will cause its respective Affiliates, shareholders, directors, officers, employees, investment bankers, attorneys, agents and representatives not need to contain to, directly or indirectly, make or authorize any provision prohibiting (includingpublic statement, any direct recommendation or indirect “standstill” or similar provisions that prohibit) the making solicitation in support of any Company Acquisition Proposal)Proposal made by any person, and entity or group (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representativesother than Purchaser).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ikanos Communications), Asset Purchase Agreement (Ikanos Communications)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time Closing or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to its terms, the Company shall Seller and the Acquired Companies will not, nor shall it permit any of and the Seller and the Acquired Companies will cause its Subsidiaries torespective directors, nor shall it authorize or knowingly permit any of its Representatives to (officers, employees, representatives, investment bankers, agents and shall use reasonable best efforts to cause such Persons affiliates not to), directly or indirectly, indirectly (Aa) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (as defined herein) by any person, entity, or group (other than an Acceptable Company Confidentiality AgreementBuyer and its affiliates, agents and representatives) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (Db) enter into, continue or otherwise participate in any discussions or negotiations regarding with, or disclose any Company information concerning any of the SPR Companies to, or afford access to the properties, books or records of any of the SPR Companies, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents, and representatives) in connection with any Acquisition Proposal with respect to any of the SPR Companies. For purposes of this Agreement, an “Acquisition Proposal” means any proposal or offer relating to (i) the acquisition of any of the assets or properties of any of the SPR Companies, (ii) any merger, consolidation, sale or license of substantial assets or similar transactions involving any of the SPR Companies or (iii) sales by any of the SPR Companies of any membership or other equity interests of the SPR Companies. The Acquired Companies and Seller will immediately cease and cause each of their affiliates to immediately cease any and all existing activities, discussion, or (E) agree negotiations with any parties conducted heretofore with respect to do any of the foregoing; provided, however, if, prior to the receipt . Each of the Company Stockholder Approval, following the receipt Acquired Companies and Seller will promptly (A) notify Buyer if it or any affiliate receives or becomes aware of a bona fide any proposal or written Company inquiry or written request for information in connection with an Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior potential Acquisition Proposal and that was not solicited in violation (B) notify Buyer of this Section 5.02(a) made the terms and conditions of any such Acquisition Proposal including the identity of the party making an Acquisition Proposal. In addition, from and after the date of this Agreement, until the Company may, in response earlier to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to occur of the Company to the Person making such Company Acquisition Proposal and engage in discussions Closing Date or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution termination of this Agreement (provided, that such agreement does not need pursuant to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Personits terms, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (Acquired Companies and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall Seller will not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but Acquired Companies and Seller will cause its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in any event within 24 hours of occurrence) notify Parent support of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; providedmade by any person, however, that the “matching period” set forth above shall in such circumstance expire on the later of three entity or group (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(hother than Buyer).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (NightHawk Radiology Holdings Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement hereof and continuing until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article IX, the Company shall will not, nor and shall it not permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not Subsidiaries' officers or directors to), or authorize any of its or any of its Subsidiaries' employees, attorneys, financial advisors, agents or other representatives to, directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminatedinformation), or knowingly facilitate take any inquiry or other action intended to facilitate, the making or submission of any inquiry, proposal, indication of interest or offer which constitutesproposal that constitutes a Takeover Proposal from any Person, or would reasonably be expected engage in or continue discussions or negotiations with any third party relating to lead a Takeover Proposal by or involving such third party, nor shall the Company approve the taking of any action prohibited by the provisions of this sentence above. The Company agrees that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and its Board of Directors shall be permitted to (i) to the extent applicable, comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to a Takeover Proposal, (ii) file a Form 8-K with the SEC with respect to the entering into of this Agreement, including any exhibits deemed appropriate with respect thereto, or (iii) effect a Change in Company Acquisition Recommendation during the Window Period, if and only to the extent that, in any such case as is referred to in clause (iii) (A) the Company has received during the Window Period a bona fide written Takeover Proposal from a third party not solicited by the Company in violation of this Section 7.9 and such Takeover Proposal constitutes a Superior Proposal, (B) subject the Company has furnished to Parent a Notice of Superior Proposal in accordance with Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, 7.9(b)(iii) and (C) subject Parent does not, within 48 hours of Parent's receipt of the Notice of Superior Proposal, deliver to the Company a binding, written offer to acquire 100% of the equity securities of the Company (by merger or otherwise) that the Board of Directors of the Company determines in its good faith judgment (after receipt of written advice of its financial advisor of nationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal. The Company agrees that it will use its best efforts to promptly inform its directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 5.02(b)7.9.
(b) During the Window Period, approve or recommendand at any time thereafter if the Board of Directors of the Company shall have effected a Change in Company Recommendation, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, the Company may engage in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposalwith, or (E) agree provide information to, any Person in response to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Takeover Proposal that by any such Person not solicited by the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a7.9, if and only to the extent that, (i) made after the date of this Agreement, the Company may, in response to such Company Acquisition Takeover Proposal constitutes a Superior Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1ii) prior to furnishing, providing any non-public information or causing data to be furnished, any such nonpublic information relating to the Company to person in connection with a Takeover Proposal by any such Person, the Company enters into a Company's Board of Directors receives from such Person an executed confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than containing confidentiality terms as least as stringent as those contained in the Confidentiality Agreement as in effect immediately prior referred to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal 7.2 and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed least 48 hours prior to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or providing any non-public information or data to any Person in connection with regard to a Takeover Proposal or entering into discussions or negotiations with any Person in connection with a Takeover Proposal, the Company notifies Parent of such Company Acquisition Proposal is Takeover Proposal, any such non-public information requested fromfrom the Company, or any such discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal or continued with, the Company (or any of its Representatives), the Company's representatives indicating, in connection with such notice, the identity name of the such Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (a "Notice of Superior Proposal"). Notwithstanding any provision of this Agreement to the contrary, in the event that subsequent to the date of this Agreement and providing copies prior to the earlier of all related written inquiries(x) the expiration of the Window Period and (y) such time as this Agreement becomes available on the SEC's ▇▇▇▇▇ system, proposals any Person makes an unsolicited request for a copy of this Agreement, the Company shall be permitted to provide such Person with a copy of this Agreement.
(c) Nothing in this Section 7.9 shall (i) permit the Company to terminate this Agreement or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in affect any event, within 24 hours) other obligation of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)Company under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Teletech Holdings Inc), Merger Agreement (Newgen Results Corp)
No Solicitation. From and after the date hereof until the Expiration Date, each Stockholder shall not directly or indirectly: (a) The solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company shallor take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, shall cause its Subsidiaries (b) furnish any non-public information regarding the Company to and shall request that its Representativesany Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry regarding the Company, immediately cease (ic) any communications, engage in discussions or negotiations with any Person that may be ongoing with respect to a Company any Acquisition ProposalProposal or Acquisition Inquiry regarding the Company, (iid) furnishing to approve, endorse or recommend any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, 6.3 of the Merger Agreement) (Ce) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement any Contract contemplating or understanding, in each case otherwise relating to a any Acquisition Transaction regarding the Company Acquisition Proposal (other than an Acceptable Company Confidentiality subject to Section 5.4 of the Merger Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (Df) enter intotake any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, continue (g) initiate a Stockholders’ vote or otherwise participate action by consent of the Company’s Stockholders with respect to an Acquisition Proposal regarding the Company, (h) except by reason of this Agreement, become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to any discussions or negotiations voting securities of the Company that takes any action in support of an Acquisition Proposal regarding any the Company Acquisition Proposal, or (Ei) propose or agree to do any of the foregoing; provided, however, if, prior to . In the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, event that such agreement does Stockholder is a corporation, partnership, trust or other Entity, it shall not need to contain permit any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (Subsidiaries or Affiliates to, nor shall it being understood that the delivery authorize any officer, director or representative of such notice and any amendment or update thereto and the determination to so deliver such noticeStockholder, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives)Subsidiaries or Affiliates to, indicating, in connection with such notice, the identity undertake any of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)actions contemplated by this Section 7.
Appears in 2 contracts
Sources: Merger Agreement (Vascular Biogenics Ltd.), Support Agreement (Vascular Biogenics Ltd.)
No Solicitation. (a) The Company shallJefferson agrees that, shall cause its Subsidiaries to and shall request that its Representativesexcept as expressly permitted by Section 6.8(b), immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after from the date of this Agreement until the earlier to occur of the Effective Time or or, if earlier, the date of termination of this Agreement in accordance with ARTICLE 9Section 8.1, the Company shall it will not, nor shall it permit any of and will cause its Subsidiaries and its Subsidiaries’ officers, directors, and employees (the “Jefferson Individuals”) not to, nor shall it authorize or knowingly permit any of and will use its Representatives to (and shall use commercially reasonable best efforts to cause such Persons Jefferson and its Subsidiaries’ agents, advisors and controlled affiliates, accountants, legal counsel, and financial advisors (the “Jefferson Representatives”) not to), directly or indirectlyinitiate, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry inquiries or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesproposals with respect to, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate engage in any discussions or negotiations regarding concerning, or provide any Company confidential or nonpublic information or data concerning its and/or its Subsidiaries business, properties or assets (“Jefferson Confidential Information”) to, or have any discussions with, any person or entity relating to, any Acquisition Proposal. Jefferson will immediately cease and cause to be terminated any activities, discussions or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after negotiations conducted before the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance Agreement with Section 5.02(b), furnish information any persons or entities other than HomeTrust with respect to the Company to the Person making such Company any Acquisition Proposal and engage in discussions will use its commercially reasonable best efforts, subject to applicable law, to enforce any confidentiality or negotiations with similar agreement relating to such Person regarding such Company an Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in Section 6.8(a), at any time from the date of this Agreement, Agreement and prior to obtaining the receipt of the Company Stockholder Jefferson Shareholder Approval, in the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company event Jefferson receives an unsolicited Acquisition Proposal that was not solicited in violation and the Board of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case Directors of a Company Acquisition Proposal, the Company Board concludes Jefferson determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, faith that such Company Acquisition Proposal constitutes a Company Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal; , Jefferson may, and may permit its Subsidiaries and the Jefferson Individuals and the Jefferson Representatives to, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less favorable to Jefferson than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), (ii) furnish or cause to be furnished Jefferson Confidential Information to the person or entity making such Acquisition Proposal pursuant to an Acceptable Confidentiality Agreement, and (IIIiii) negotiate and participate in such negotiations or discussions with the Company person or entity making such Acquisition Proposal concerning such Acquisition Proposal, if the Board concludes of Directors of Jefferson determines in good faithfaith (following consultation with counsel) that failure to take such actions would reasonably be likely to result in a violation of its fiduciary duties under applicable law.
(c) The Board of Directors of Jefferson shall not (nor shall any committee thereof) withdraw or modify, in a manner adverse to HomeTrust, the Jefferson Board Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify in any manner adverse to HomeTrust the Jefferson Board Recommendation (any such action, a “Change in Recommendation”). Notwithstanding the foregoing, the Board of Directors of Jefferson (including any committee thereof) may, at any time prior to obtaining the Jefferson Shareholder Approval, effect a Change in Recommendation in response to a bona fide written unsolicited Acquisition Proposal made after the date of this Agreement that the Board of Directors of Jefferson determines in good faith (after consultation with the CompanyJefferson’s outside legal counsel, that the failure to make ) constitutes a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretoProposal; provided, however, that the “matching period” set forth above shall Board of Directors of Jefferson may not make a Change in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; providedRecommendation, further, (x) whether or not there is a Company Adverse Recommendation Change, unless terminate this Agreement has been terminated in accordance with pursuant to Section 9.018.1(f), the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to an Acquisition Proposal until it has given HomeTrust at least four (4) business days, following HomeTrust’s initial receipt of written notice that the Board of Directors of Jefferson has determined that such Acquisition Proposal is a Company Superior Proposal and the reasons therefor, to respond to any such Acquisition Proposal and, taking into account any amendment or modification to this Agreement proposed by HomeTrust, the Board of Directors of Jefferson determines in good faith (after consultation with counsel) that such Acquisition Proposal continues to constitute a Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(cd) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall Jefferson will promptly (and in any event within 24 hourstwo (2) notify Parent business days) advise HomeTrust in writing following receipt of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, and the Company substance thereof (or any of its Representatives), indicating, in connection with such notice, including the identity of the Person person or group entity making such Acquisition Proposal), and will keep HomeTrust apprised of Persons making any related developments, discussions and negotiations (including the inquiry, proposal or offer and the material terms and conditions conditions, whether written or oral, of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreementsthe Acquisition Proposal) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis current basis.
(ande) As used in this Agreement, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and following terms have the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).meanings set forth below:
Appears in 2 contracts
Sources: Merger Agreement (Jefferson Bancshares Inc), Merger Agreement (HomeTrust Bancshares, Inc.)
No Solicitation. (a) The Company shall, Harcourt General agrees that neither it nor any executive officer of Harcourt General named on Schedule 4.6 to this Agreement or any director of Harcourt General who is also an executive officer or director of Neiman Marcus (a "Shared Representative") shall cause its Subsidiaries to and shall request that its Representatives, immediately cease solicit any offers or proposals regarding (i) any communicationsmerger, discussions reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposalsimilar transaction involving Neiman Marcus, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and purchase or sale of all or substantially all of the Company’s Representatives) any information with respect to a Company Acquisition Proposal and assets of Neiman Marcus or (iii) cooperating with, assisting in, participating in, any issuance or knowingly facilitating other sale or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission transfer of any inquiry, proposal, indication of equity interest or offer which constitutes, or would reasonably be expected to lead toin Neiman Marcus held by Harcourt General (collectively, a Company Acquisition "Transaction Proposal, "). The obligations set forth in clauses (Bi) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, and (Cii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a4.6(a) made after shall terminate on the date that is two years following the Distribution Date and the obligations set forth in clause (iii) of this Agreement, Section 4.6(a) shall terminate on the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives)Distribution Date.
(b) Notwithstanding anything Upon receipt of an unsolicited Transaction Proposal, Harcourt General or any Shared Representative, as the case may be, shall, in Harcourt General's sole discretion, either (i) promptly reject such Transaction Proposal, subject to the contrary in this Agreementfiduciary obligations of any Shared Representative to Neiman Marcus or its stockholders or to such Shared Representative's obligations as an executive officer of Neiman Marcus, prior or (ii) refer such Transaction Proposal to Walt▇▇ ▇. ▇▇▇▇▇▇ ▇▇ another Independent Director and to the receipt Person designated pursuant to Section 5.5 to receive copies of any notices delivered to Neiman Marcus and the Company Stockholder Approval, Independent Directors of Neiman Marcus. In the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition event that the Independent Directors determine that such Transaction Proposal that was not solicited in violation of Section 5.02(a) is made to should be discussed further with the Company by a Third Party and party making such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Transaction Proposal, the Company Board concludes Independent Directors shall notify Harcourt General in good faithwriting, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes signed by a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties majority of the Company Board under applicable Law; provided, however, none Independent Directors of Neiman Marcus. Harcourt General and the Company, the Company Board or any committee thereof Shared Representatives shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention be permitted to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such noticesteps as they deem appropriate, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in their good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicatingjudgment, in connection with such notice, the identity Transaction Proposal without being deemed to violate this Section 4.6. The sole remedy for breach by Harcourt General or any of the Person or group Shared Representatives of Persons making this Section 4.6 shall be the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) elimination of the status indemnity obligation of any material discussions or negotiations with respect Neiman Marcus set forth in Section 2.4(c), as provided in the last sentence of Section 2.4(c), except as provided in the proviso to any such inquiries, proposal or offers and the details last sentence of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications theretoSection 2.4(c).
Appears in 2 contracts
Sources: Distribution Agreement (Harcourt General Inc), Distribution Agreement (Neiman Marcus Group Inc)
No Solicitation. (a) The Company Parent shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Parent Acquisition Proposal, (ii) furnishing to any Person (other than Parentthe Company, Merger Sub, their respective its Representatives and the CompanyParent’s Representatives) any information with respect to a Company Parent Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Parent Acquisition Proposal and, if applicable, shall request to have returned to the Company Parent or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company Parent shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate facilitate, any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Parent Acquisition Proposal, (B) subject to Section 5.02(b6.03(b), approve or recommend, or publicly propose to approve or recommend, a Company Parent Acquisition Proposal, (C) subject to Section 5.02(b6.03(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Parent Acquisition Proposal (other than an Acceptable Company Parent Confidentiality Agreement) or a Company Parent Superior Proposal (each an “Alternative Company Parent Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Parent Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Parent Shareholder Approval, following the receipt of a bona fide written Company Parent Acquisition Proposal that the Company Parent Board determines in good faith, after consultation with the CompanyParent’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Parent Superior Proposal and that was not solicited in violation of this Section 5.02(a6.03(a) and made after the date of this Agreement, the Company Parent may, in response to such Company Parent Acquisition Proposal, and subject to compliance with Section 5.02(b6.03(b), furnish information with respect to the Company Parent to the Person making such Company Parent Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Parent Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company Parent to such Person, the Company Parent enters into a confidentiality agreement with the Person making such Company Parent Acquisition Proposal (an “Acceptable Company Parent Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company Parent from complying with its obligation to provide any disclosure to Parent the Company required pursuant to this Section 5.02 6.03 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Parent Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company Parent furnishes such nonpublic information to Parent the Company (to the extent such nonpublic information has not been previously so furnished to Parent the Company or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Parent Shareholder Approval, the Company Parent Board may effect a Company Parent Adverse Recommendation Change if (and only if): (I) (A) a written Company Parent Acquisition Proposal that was not solicited in violation of Section 5.02(a6.03(a) is made to the Company Parent by a Third Party and such Company Parent Acquisition Proposal is not withdrawn or (B) there has been a Company Parent Intervening Event; (II) in the case of a Company Parent Acquisition Proposal, the Company Parent Board concludes in good faith, after consultation with the CompanyParent’s outside financial advisors and outside legal counsel, that such Company Parent Acquisition Proposal constitutes a Company Parent Superior Proposal; and (III) the Company Parent Board concludes in good faith, after consultation with the CompanyParent’s outside legal counsel, that the failure to make a Company Parent Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Parent Board under applicable Law; provided, however, none of the CompanyParent, the Company Parent Board or any committee thereof shall make a Company Parent Adverse Recommendation Change and/or authorize the Company Parent to enter into any Alternative Company Parent Acquisition Agreement unless:
(i) the Company Parent Board provides Parent the Company at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Parent Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Parent Superior Proposal that is specified in Section 5.02(c6.03(b), as well as a copy of such Company Parent Acquisition Proposal and any related Alternative Company Parent Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Parent Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b6.03(b) below), the Company Parent Board and its Representatives have negotiated in good faith with Parent the Company (to the extent Parent the Company desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parentthe Company’s sole discretion, be proposed by Parent the Company in response to such Company Parent Superior Proposal or Company Parent Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b6.03(b) below), the Company Parent Board concludes in good faith, after consultation with the CompanyParent’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent the Company and capable of acceptance by the CompanyParent), that, as applicable (A) the Company Parent Acquisition Proposal continues to be a Company Parent Superior Proposal or (B) the Company Parent Intervening Event continues to warrant a Company Parent Adverse Recommendation Change and, in each case, that the failure to make such Company Parent Adverse Recommendation Change would be inconsistent with the fiduciary duties of owed by the Company Parent Board to Parent under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Parent Superior Proposal will be deemed to be a new Company Parent Acquisition Proposal for purposes of this Section 5.026.03, and the Company Parent shall promptly (but in any event within 24 hours of occurrence) notify Parent the Company of any such new Company Parent Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b6.03(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Parent Board provides written notice of such new Company Parent Acquisition Proposal to Parent the Company and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Parent Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Parent Board shall submit this Agreement the Parent Share Issuance for approval by the Company stockholders Parent shareholders at the Company Stockholders Parent Shareholders Meeting; and (y) in the event there is a Company Parent Adverse Recommendation Change made in compliance with this Section 5.02(b) 6.03 with respect to a Company Parent Superior Proposal, the Company Parent shall only enter into an Alternative Company Parent Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a6.03(a) and Section 5.02(b6.03(b), the Company (i) Parent shall promptly (and in any event within 24 hours) notify Parent the Company in writing of any inquiries, proposals or offers with respect to a Company Parent Acquisition Proposal that are received by, or any non-public information with regard to such Company Parent Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Parent Acquisition Proposal with, the Company Parent (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent the Company reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).
Appears in 2 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned Subject to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date other clauses of this Agreement. From Section 5.3, from and after the date of this Agreement hereof until the earlier to occur of the Effective Time or or, if earlier, the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Article 7, the Company shall not, nor and shall it permit any of its cause the Company Subsidiaries not to, nor shall it authorize or knowingly permit any of its Representatives to (and shall instruct and use commercially reasonable best efforts to cause such Persons the Company Representatives (on behalf of the Company or the Company Subsidiaries) not to), directly or indirectly, (Ai) initiate, solicit, initiate knowingly facilitate (including by providing any non-public information concerning the Company or any Company Subsidiary to any Person or group for the purpose of facilitating any inquiries, proposals or offers relating to any Acquisition Proposal) or knowingly encourage the submission or announcement of any inquiries, proposals or offers relating to any Acquisition Proposal or engage in any discussions or negotiations with respect thereto (including by way other than informing any Third Party of furnishing information which has not been previously publicly disseminatedthe existence of the provisions contained in this Section 5.3) (provided, that the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board’s informing itself about such Acquisition Proposal and the Third Party making it), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (Bii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company any Acquisition Proposal, (Ciii) subject withhold, withdraw or rescind (or change or qualify, in a manner adverse to Section 5.02(bParent or Merger Sub), approve or recommend, or publicly propose to approve withhold, withdraw or recommendrescind (or change or qualify, in a manner adverse to Parent or execute or Merger Sub), the Company Board Recommendation, including the failure to include the Company Board Recommendation in the Proxy Statement/Prospectus, (iv) enter into any merger agreement, letter of intent, memorandum of understanding, merger agreement intent or other agreement, arrangement or understanding, in each case similar agreement relating to a Company any Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (Ev) resolve or agree to do any of the foregoing; providedforegoing (any action set forth in the foregoing clause (ii), however(iii) or (v) (to the extent related to the foregoing clause (ii) or (iii)), ifa “Change of Board Recommendation”). Subject to the other clauses of this Section 5.3, the Company shall, and shall cause the Company Subsidiaries and shall instruct and use commercially reasonable efforts to cause the Company Representatives to, (A) promptly (and, in any event, within 24 hours after the execution of this Agreement) cease any discussion or negotiation with any Persons (other than Parent and its affiliates and representatives) conducted prior to the receipt date hereof by the Company, the Company Subsidiaries or any of the Company Stockholder ApprovalRepresentatives with respect to any Acquisition Proposal, (B) promptly (and, in any event, within 24 hours after the execution of this Agreement) terminate access by any Third Party to any physical or electronic data room relating to any Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal and (C) promptly (and in any event within seventy-two (72) hours after the date of this Agreement) request the prompt return or destruction of any confidential information provided to any Third Party within the twelve (12) months immediately preceding the date of this Agreement in connection with any Acquisition Proposal or any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal (it being understood that, for the avoidance of doubt, to the extent any contact by the Company or any Company Representative with any Person is in furtherance of the Company’s obligations pursuant to this clause (C), such contact shall not violate the other restrictions of this Section 5.3). Any material violations of the restrictions set forth in this Section 5.3 by any Company Subsidiary or any director or executive officer of the Company or any Company Subsidiary shall be deemed to be a material breach of this Section 5.3 by the Company.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any time following the receipt of date hereof and prior to the time that the Company Stockholder Approval is obtained, the Company receives a bona fide written Company Acquisition Proposal from a Third Party, which Acquisition Proposal was made or renewed on or after the date of this Agreement and does not result from a breach of the obligations set forth in Section 5.3(a), (i) the Company and the Company Representatives shall be permitted to participate in discussions regarding such Acquisition Proposal solely to clarify the terms and conditions of such Acquisition Proposal and (ii) if the Company Board determines in good faith, after consultation with its advisors, based on information then available, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company may (i) furnish information with respect to the Company and the Company Subsidiaries (including nonpublic information) to the Third Party making such Acquisition Proposal, its representatives and potential sources of financing and (ii) participate in discussions or negotiations with the Third Party making such Acquisition Proposal, its representatives and potential sources of financing regarding such Acquisition Proposal (subject to promptly and, in any event, within twenty-four (24) hours, notifying Parent of the status and material details thereof (including copies of any written documentation that is material to such Acquisition Proposal); provided that the Company (A) will not, and will cause the Company Subsidiaries not to, and will instruct the Company Representatives not to, disclose any material nonpublic information to such Person without first entering into an Acceptable Confidentiality Agreement with such Person and (B) will provide to Parent any material nonpublic information concerning the Company or the Company Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent as promptly as practicable (and, in any event, within twenty-four (24) hours of providing such information to such other Person).
(c) The Company shall promptly (and in any event within twenty-four (24) hours after knowledge of receipt by an executive officer or director of the Company) notify Parent in the event that the Company receives (or obtains Knowledge that any Company Representative has received) any Acquisition Proposal. The Company shall notify Parent promptly (and in any event within twenty-four (24) hours after knowledge of receipt by an executive officer or director of the Company) provide to Parent the identity of the Third Party making such Acquisition Proposal and a copy of such Acquisition Proposal (or, where no such copy is available, a reasonable summary of the material terms and conditions of such Acquisition Proposal). Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours after such determination) advise Parent if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(b). Thereafter, the Company shall keep Parent informed on a prompt (and, in any event, within twenty-four (24) hours) basis of the status and material details (including amendments or proposed amendments) of any such Acquisition Proposal (including by providing copies of any written documentation material to such Acquisition Proposal).
(d) Notwithstanding anything to the contrary contained in Section 5.3(a), if the Company has received a bona fide written Acquisition Proposal that (i) has not been withdrawn, (ii) did not result from a breach of the obligations set forth in Section 5.3(a) and (iii) that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counselits advisors, is or could reasonably be expected to lead to constitutes a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this AgreementProposal, the Company Board may at any time prior to the time that the Company Stockholder Approval is obtained, (A) effect a Change of Board Recommendation with respect to such Superior Proposal or (B) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, in either case, subject to the requirements of Section 5.3(f) and, in the case of clause (B), provided, that the Company (x) pays, or causes to be paid, to Intermediate Parent the Termination Fee payable pursuant to Section 7.3(a) prior to or concurrently with such termination and (y) immediately following or concurrently with such termination, enters into a definitive acquisition agreement that documents the terms and conditions of such Superior Proposal.
(e) Notwithstanding anything to the contrary contained in Section 5.3(a), the Company Board may, in response at any time prior to such the time that the Company Acquisition ProposalStockholder Approval is obtained, and subject to compliance with the requirements of Section 5.02(b5.3(f), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that effect a Change of Board Recommendation if (1i) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if determines that an Intervening Event has occurred and is continuing and (and only if): (Iii) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes determines in good faith, after consultation with outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties under applicable Law.
(f) The Company shall not be entitled to effect a Change of Board Recommendation pursuant to Section 5.3(d) or Section 5.3(e) or terminate this Agreement pursuant to Section 5.3(d) and Section 7.1(f) unless (x) the Company shall have provided to Parent at least three (3) Business Days’ prior written notice (the “Notice Period”) of the Company’s outside financial advisors intention to take such action, which notice shall specify the material terms and outside legal counsel, that conditions of such Company Acquisition Proposal constitutes (and shall have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Acquisition Proposal) or details of such Intervening Event, as applicable, and (y):
(i) during the Notice Period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent that would reasonably be expected to (A) obviate the need to effect a Change of Board Recommendation or (B) cause such Acquisition Proposal to no longer constitute a Superior Proposal, as applicable; and and
(IIIii) the Company Board concludes shall have considered in good faith any adjustments or proposed amendments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 a.m., New York City time, on the last day of the Notice Period and shall have determined in good faith, after consultation with the Company’s its advisors and outside legal counsel, that the failure to make a Company Adverse Change of Board Recommendation Change pursuant to Section 5.3(d) or Section 5.3(e) or terminate this Agreement pursuant to Section 5.3(d) and Section 7.1(f), as applicable, would be inconsistent with the its fiduciary duties of the Company Board under applicable Law; provided, however, none of . Any (A) material changes relating to such Intervening Event or (B) material revisions to such Superior Proposal offered in writing by the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take party making such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall includeSuperior Proposal, as applicable, (Ashall constitute a new Intervening Event or Acquisition Proposal, as applicable, and, in each case, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(f) the information with respect to such new written notice, except that the Notice Period shall be two (2) Business Days with respect thereto, but no such new written notice shall shorten the original Notice Period.
(g) Nothing contained in this Section 5.3 shall prohibit the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or Board from (Bi) disclosing to the facts and circumstances in reasonable detail stockholders of the Company Intervening Event;
a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) during making any disclosure to the five (5) days following such written notice described in stockholders of the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), Company if the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each casecounsel, that the failure to make such Company Adverse Recommendation Change disclosure would be reasonably likely to be inconsistent with the its fiduciary duties of or violate applicable Law. The issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under applicable Law. Any amendment or modification the Exchange Act, in which the Company indicates that it has not changed the Company Board Recommendation as of the date of such statement, shall not constitute a Change of Board Recommendation.
(h) Notwithstanding any provision of Section 5.3(a) to the conditionalitycontrary, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in not grant any event within 24 hours of occurrence) notify Parent of waiver or release under, or fail to enforce, any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect theretostandstill or similar agreement; provided, however, that at any time prior to obtaining the “matching period” set forth above shall in such circumstance expire on Company Stockholder Approval, the later Company may grant a waiver or release under any standstill agreement, or any provision of three any confidentiality or similar agreement with similar effect, (3i) days after if the Company Board provides written notice of determines in good faith (after consultation with its outside legal counsel) that the failure to take such new Company Acquisition Proposal action would reasonably be expected to Parent and the end of the original five (5) day period described in clause be inconsistent with its fiduciary duties under applicable Law or (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, response to an Acquisition Proposal made under such circumstances in which the Company Board is permitted under this Section 5.3 to participate in discussions regarding an Acquisition Proposal, but only to the extent necessary to allow it to pursue or consummate such Acquisition Proposal, subject to the conditions set forth in this Section 5.3. The Company shall submit this Agreement for approval provide written notice to Parent of waiver or release of any standstill by the Company stockholders at Company, including disclosure of the Company Stockholders Meeting; identities of the parties thereto and (y) in a summary of the event there is a Company Adverse Recommendation Change made in compliance material circumstances relating thereto. Except for the waiver or release of any standstill, or any provision of any confidentiality or similar agreement with similar effect, as contemplated by this Section 5.02(b) with respect to a Company Superior Proposal5.3(h), the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to not release or permit the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing release of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested Person from, or amend, waive, terminate or modify, and shall not permit the amendment, waiver, termination or modification of, any discussions provision of, any confidentiality or negotiations are sought similar agreement or provision to which the Company or any Company Subsidiary is a party or under which the Company or any Company Subsidiary has any rights. The Company shall not, and shall instruct and use commercially reasonable efforts to not permit any Company Representative (on the Company’s behalf) to, enter into any confidentiality or similar agreement subsequent to the date of this Agreement that prohibits the Company from providing to Parent the information specifically required to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep provided to Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect pursuant to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Section 5.3.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
No Solicitation. (a) The Company shallExcept as otherwise provided in this Section 6.5, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company GFI shall not, nor shall it authorize or permit any of its the GFI Subsidiaries to, nor shall it authorize or knowingly permit any of its and its Subsidiaries' respective Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectlyindirectly (i) initiate, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), solicit or knowingly facilitate or encourage any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, proposal that constitutes a Company Acquisition Takeover Proposal, (Bii) subject to Section 5.02(b), approve or recommendadopt, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommendadopt, or publicly propose allow GFI or any GFI Subsidiary to approve or recommend, or execute or enter into into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, arrangement commitment, arrangement, undertaking, or understanding, understanding in each case connection with or relating to a Company Acquisition any Takeover Proposal (other than an Acceptable Company Confidentiality Agreementconfidentiality agreements permitted under Section 6.5(b)(i)) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”)iii) other than with CME, (D) enter intoMerger Sub 1, Merger Sub 2 or their respective Representatives or other than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposalregarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. GFI shall, and GFI shall cause the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement.
(Eb) agree to do any of Notwithstanding the foregoing; provided, however, if, prior to the receipt of the Company GFI Stockholder Approval, following GFI and the receipt Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Company Acquisition Takeover Proposal that was first received after the Company date hereof and did not otherwise result from a breach of this Section 6.5, and subject to compliance with Section 6.5(d) (Change in Recommendation):
(i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less favorable in the aggregate to GFI than those contained in the Confidentiality Agreement then in effect; provided that such confidentiality agreement (A) shall be provided to CME promptly after its execution, (B) shall not contain any provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 6.5 (No Solicitation) and (C) need not contain a standstill or similar provision that prohibits such Person from making a Takeover Proposal; provided, further, that a copy of all such information provided to such Person has previously been provided to CME or its Representatives or is provided to CME substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith, faith (after consultation with the Company’s outside financial advisors and its outside legal counsel, counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Company Superior Proposal.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to CME of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to CME that was it is prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), (A) once, and not solicited more than once, each day at mutually reasonably agreeable times, GFI (or its outside legal counsel) shall, in violation person or by telephone, provide CME (or its outside legal counsel) a summary of this Section 5.02(athe status of such Takeover Proposal and the material resolved or unresolved issues (including the stated positions of the parties to such negotiations on such issues) made after related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery thereof, provide CME (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the date one hand, and the person making such Takeover Proposal or any of this Agreementits Representatives, on the other hand.
(d) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to receipt of the GFI Stockholder Approval, the Company Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to such Company Acquisition Proposala Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and subject its independent financial advisor) that the failure to compliance do so would reasonably be likely to be inconsistent with Section 5.02(b), furnish information with respect its fiduciary duties to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposalstockholders of GFI under applicable Law; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (providedfurther, that the Board of Directors of GFI may not effect such agreement does not need to contain any provision prohibiting a Change in Recommendation unless (including, any direct or indirect “standstill” or similar provisions that prohibiti) the making Board of any Company Acquisition Proposal), and Directors of GFI (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, upon the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt recommendation of the Company Stockholder Approval, the Company Board may Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Company Adverse Change in Recommendation Change if (and only if): (I) (A) in response to a written Company Acquisition Superior Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company an Intervening Event; (II) , which notice shall, in the case of a Company Acquisition Superior Proposal, attach the Company most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by CME, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) CME does not make, within four Business Days after receipt of such notice a proposal that the Board concludes of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by CME, negotiate in good faith with CME and its Representatives (so long as CME and its Representatives are negotiating in good faith, ) regarding any revisions to the terms of the Transactions proposed by CME intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to CME a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(e) Nothing contained in this Section 6.5 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with the Company’s outside financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change such disclosure would reasonably be likely to be inconsistent with the its fiduciary duties to the stockholders of the Company Board GFI under applicable Law; provided, however, none that neither the Board of the Company, the Company Board or Directors of GFI nor any committee thereof shall make (including the Special Committee) shall, except as expressly permitted by Section 6.5(d) (Change in Recommendation), effect a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:in Recommendation.
(if) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for For purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
No Solicitation. (a) The Company shallshall not, and shall cause its Subsidiaries to not to, and shall request not authorize or permit its and its Subsidiaries’ Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that its Representativescould reasonably be expected to lead to any Takeover Proposal, immediately cease or, subject to Section 6.11(b), (i) conduct or engage in any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned disclose any non-public information relating to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9, the Company shall not, nor shall it permit any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (ii) (A) amend or grant any waiver (other than any wavier, as required by Law, of any “don’t ask don’t waive” provisions of any standstill agreements now in effect) or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Subject to Section 6.11(b), neither the Company Board nor any committee thereof shall it fail to make the Company Board Recommendation, or withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Common Stock constituting a Takeover Proposal within ten (10) Business Days after the commencement of such offer, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to (continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use its reasonable best efforts to cause any such Persons not to), directly third party (or indirectly, (Aits agents or advisors) solicit, initiate in possession of non-public information in respect of the Company or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of its Subsidiaries that was furnished by or on behalf of the foregoing; provided, however, ifCompany and its Subsidiaries in connection with a Takeover Proposal to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding Section 6.11(a), prior to the receipt of the Company Stockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.11(c) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided, that any non-public information relating to the Company or any of its Subsidiaries provided to such third party shall have been previously provided to Parent or is made available to Parent prior to, or concurrent with, the time such information is provided to such third party, (iii) following the receipt of and on account of a bona fide written Superior Proposal, make a Company Acquisition Adverse Recommendation Change, and/or (iv) take any action related to such Takeover Proposal 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) through (iii), only if the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.11(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 (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or could any of its Representatives) of any bona fide Takeover Proposal, any inquiry that would reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Takeover Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party in connection with a Takeover Proposal. In such Personnotice, the Company enters into shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent informed, on a confidentiality agreement reasonably current basis, of the status and material terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with the Person making such Company Acquisition Proposal at least forty-eight (an “Acceptable Company Confidentiality Agreement”48) that (x) does not contain hours prior notice of any provision that would prevent meeting of the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and Board (y) contains provisions that in the aggregate are no less restrictive on or such Person than those contained in the Confidentiality Agreement lesser notice as in effect immediately prior is provided to the execution members of this Agreement (provided, that such agreement does not need the Company Board) at which the Company Board is reasonably expected to contain consider any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making Takeover Proposal. The Company shall promptly provide Parent with a list of any Company Acquisition Proposal)non-public information concerning the Company’s business, and (2) promptly (but in present or future performance, financial condition or results of operations, provided to any event within 24 hours) following furnishing any such nonpublic information to such Personthird party, the Company furnishes such nonpublic information to Parent (and, to the extent such nonpublic information has not been previously so furnished provided to Parent or its Representatives)Parent, copies of such information.
(bd) Notwithstanding anything to the contrary Except as set forth in this Section 6.11(d), the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Company Stockholder Approval, the Company Board may effect make a Company Adverse Recommendation Change if or enter into (and only if): (Ior permit any Subsidiary to enter into) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least four (4) Business Days (the “Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors intends to declare a Superior Proposal and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure intends to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of and/or the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company intends to enter into any Alternative a Company Acquisition Agreement unless:
Agreement; (iii) the Company Board provides attaches to such notice the most current material terms of the proposed agreement (which shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, definitively proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least five two (52) days’ prior written notice Business Days remain in the Notice Period subsequent to the time the Company notifies Parent of its intention to take any such action material revision (it being understood that the delivery of such notice there may be multiple extensions)); and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (Aiv) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes determines in good faith, after consultation consulting with the Company’s outside legal counsel and financial advisors (and its Company Financial Advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing adjustments made by Parent and capable of acceptance by during the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) Notice Period in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement Time, except as specifically permitted in accordance with ARTICLE 9Section 5.4(d), the Company shall not, agrees that neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly:
(i) initiate, (A) solicit, initiate solicit or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), providing information) or knowingly facilitate any inquiry inquiries, proposals or offers with respect to, or the making or submission of any inquiry, proposal, indication of interest or offer which constitutesmaking, or would reasonably be expected the completion of, a Takeover Proposal;
(ii) participate or engage in any discussions or negotiations with, or furnish or disclose any non-public information relating to lead the Company or any of its Subsidiaries to, or otherwise knowingly cooperate with or knowingly assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company Acquisition Board Recommendation in any manner adverse to MergerCo;
(iv) approve, endorse or recommend any Takeover Proposal, ;
(Bv) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understandingagreement in principle, merger agreement, acquisition agreement, option agreement or other agreement, arrangement or understanding, in each case similar agreement relating to a Company Acquisition Proposal Takeover Proposal; or
(other than an Acceptable Company Confidentiality Agreementvi) resolve, propose or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided.
(b) The Company shall, howeverand shall cause each of its Subsidiaries and Representatives to, ifimmediately cease any solicitations, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is discussions or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after negotiations existing on the date of this Agreement, Agreement with any Person (other than the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”parties hereto) that (x) does not contain any provision that would prevent has made or indicated an intention to make a Takeover Proposal. The Company shall promptly inform its Representatives of the Company from complying with its obligation to provide any disclosure to Parent required pursuant to Company’s obligations under this Section 5.02 and 5.4.
(yc) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any The Company Acquisition Proposal), and (2) shall notify MergerCo promptly (but and in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent upon receipt by it or its Representatives).
Subsidiaries or Representatives of (bi) Notwithstanding anything to the contrary in this Agreementany Takeover Proposal, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (Iii) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made any request for non-public information relating to the Company by or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to a Third Party and such Company Acquisition Takeover Proposal is not withdrawn or (Biii) there has been a any inquiry or request for discussions or negotiations regarding any Takeover Proposal. The Company Intervening Event; shall notify MergerCo promptly (IIand in any event within 24 hours) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery identity of such notice Person and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition AgreementTakeover Proposal, indication, inquiry or request (B) the facts and circumstances in reasonable detail or, where no such copy is available, a description of the Company Intervening Event;
(ii) during the five (5) days following material terms and conditions of such written notice described in the foregoing clause (i) (Takeover Proposal, indication, inquiry or such shorter period as is specified in this Section 5.02(b) belowrequest), the including any material modifications thereto. The Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors shall keep MergerCo reasonably informed on a current basis (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrencethe occurrence of any changes, developments, discussions or negotiations) notify Parent of the status of any such new Company Acquisition Proposal Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including furnishing copies of any written revised proposals. Without limiting the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01foregoing, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent MergerCo orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.4(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any inquiriesof its Subsidiaries is party to any agreement, proposals which prohibits the Company from providing such information to MergerCo.
(d) Notwithstanding the foregoing, the Company shall be permitted, if it has otherwise complied with its obligations under this Section 5.4, but only prior to the satisfaction of the condition set forth in Section 6.1(a), to:
(i) engage in discussions or offers negotiations with respect a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to a taking such action, (A) the Company Acquisition enters into an Acceptable Confidentiality Agreement with such Person and (B) the Company Board (acting through the Special Committee, if then in existence) determines in good faith (1) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal that are received byconstitutes, or could reasonably be expected to result in, a Superior Proposal and (2) after consultation with its outside legal counsel, that the failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws;
(ii) furnish or disclose any non-public information with regard relating to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its RepresentativesSubsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.4 if, prior to taking such action, the Company Board (acting through the Special Committee, if then in existence) determines in good faith (A) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to MergerCo if such non-public information has not previously been disclosed to MergerCo;
(iii) withdraw, modify or amend the Company Board Recommendation in a manner adverse to MergerCo or SibCo (a “Recommendation Change”), indicatingif the Company Board (acting through the Special Committee, if then in connection existence) has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws; provided that, if such action is in response to or relates to a Takeover Proposal, then the Recommendation Change shall be taken only in compliance with Section 5.4(d)(iv);
(iv) in response to a Takeover Proposal not solicited in violation of this Section 5.4 which the Company Board (acting through the Special Committee, if then in existence) has determined in good faith, after consultation with its outside financial advisor, constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by MergerCo pursuant to the provisos to this paragraph, (x) effect a Recommendation Change or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, such termination to be effective only if in advance of or concurrently with such noticetermination the Company pays the Termination Fee in the manner provided for in Section 7.6(a); provided that neither the Company nor the Special Committee shall make a Recommendation Change or terminate this Agreement unless: (1) the Company Board (acting through the Special Committee, if then in existence) has determined in good faith, after consultation with outside legal counsel, that the identity failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Person or group Company under applicable Laws, (2) the Company shall have given MergerCo prompt written notice advising MergerCo of Persons making (A) the inquirydecision of the Company Board (acting through the Special Committee, proposal or offer if then in existence) to take such action and (B) the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offersthe Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed agreementstransaction agreements with such party and other material documents, (3) the Company shall have given MergerCo five Business Days (or three Business Days in the event of each subsequent material revision to such Takeover Proposal) after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with MergerCo with respect to such proposed revisions or other proposal, if any, and (4) at the end of such period, the Company Board (acting through the Special Committee, if then in existence) shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by MergerCo, if any, after consultation with outside legal counsel, that (A) in the case of a Recommendation Change, failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Takeover Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by MergerCo; provided that, in the event the Company Board (acting through the Special Committee, if then in existence) does not make the determination referred to in clause (4) of this paragraph but thereafter determines to effect a Recommendation Change or to terminate this Agreement pursuant to this Section 5.4(d)(iv), the procedures referred to in clauses (1) – (4) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification.
(e) Section 5.4(d) shall not prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (other than any disclosure prohibited by Section 5.4(d)); provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall be deemed to be a withdrawal, modification or amendment of the Company Board Recommendation in a manner adverse to MergerCo unless the Company Board (x) expressly reaffirms its recommendation to its stockholders in favor of adoption of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any action to (i) amend the Company Rights Agreement or redeem the Rights (as defined in the Company Rights Agreement), or (ii) thereafter shall keep Parent reasonably informedexempt any Person from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions) or otherwise cause such restrictions not to apply; in each case, on unless such actions are taken simultaneously with a reasonably prompt basis termination of this Agreement in accordance with its terms.
(andg) Any withdrawal, modification or amendment by the Special Committee of its recommendation that forms a part of the Company Board Recommendation in any eventmanner adverse to MergerCo or SibCo or that is inconsistent with the Company Board Recommendation, within 24 hours) and any approval, endorsement or recommendation by the Special Committee of any Takeover Proposal, and any resolution or announcement of an intention of the status of any material discussions or negotiations Special Committee with respect to any of the foregoing, shall be deemed and treated for all purposes of this Agreement as if such inquiries, proposal or offers and action were taken by the details of any material changes Company Board with respect to the status and material terms of Company Board Recommendation or any such inquiriesTakeover Proposal, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto)as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Neubauer Joseph), Merger Agreement (Aramark Corp/De)
No Solicitation. (a) The Company shall, shall cause its Subsidiaries to and shall request that its Representatives, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with ARTICLE 9pursuant to Section 8, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, and shall not authorize or permit any Subsidiary of the Company or any Representative of any of the Acquired Companies directly or indirectly to, (Ai) solicit, initiate initiate, encourage or knowingly encourage induce the making, submission or announcement of any Acquisition Proposal or take any action that would, individually or in the aggregate, reasonably be expected to lead to an Acquisition Proposal, (including by way ii) furnish any information regarding any of furnishing information which has not been previously publicly disseminated), the Acquired Companies to any Person in connection with or knowingly facilitate any in response to an Acquisition Proposal or an inquiry or the making or submission of any inquiry, proposal, indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or offer which recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing herein shall prohibit the Company's Board of Directors from complying with Rules 14d-9 or 14e-2 under the Exchange Act; and provided, further, that prior to the Required Company Stockholder Approval, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into discussions with, any Person in response to an Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Companies shall have violated in any material respect any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith (based upon a written opinion of an independent financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Company Acquisition ProposalSuperior Offer, (B3) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter the Board of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt Directors of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, faith after consultation with having taken into account the Company’s outside financial advisors and advice of its outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) action is required in order for the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of Directors of the Company Board to comply with its fiduciary obligations to the Company's stockholders under applicable Law; providedlaw, however(4) at least 24 hours prior to furnishing any such nonpublic information to, none or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent at least five (5) days’ prior written notice of its 's intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers and the details of any material changes to the status and material terms of any such inquiries, proposals or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals or offers, including proposed agreements and material modifications thereto).furnish
Appears in 2 contracts
Sources: Merger Agreement (Clarent Corp/Ca), Merger Agreement (Act Networks Inc)
No Solicitation. (a) The Company shall, shall cause its the Company Subsidiaries to and shall request that use reasonable best efforts to cause its RepresentativesRepresentatives to, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parentthe Investors, Merger SubPorsche, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreementhereof. From and after the date of this Agreement hereof until the earlier to occur of the Parent Merger Effective Time or the date of termination of this Agreement in accordance with ARTICLE 910, the Company shall not, nor shall it permit any of its the Company Subsidiaries to, nor shall it or authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause such Persons not to), directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), information) or knowingly facilitate any inquiry or the making or submission of any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) subject to Section 5.02(b7.02(b), approve or recommendapprove, recommend or publicly propose to approve or recommend, a Company Acquisition Proposal, (C) subject to Section 5.02(b)7.02(b) approve, approve or recommend, or publicly propose to approve or recommend, recommend or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (E) agree or commit, and the Company Board shall not resolve, to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with based on the advice of the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a7.02(a) and was made after the date of this Agreementhereof, the Company may, in response to such Company Acquisition ProposalProposal and to the extent that the Company Board determines that the failure to take any such action would result in a violation of the fiduciary duties of the Company Board under applicable Law, and subject to compliance with Section 5.02(b7.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior thereto the Company informs the Investors in writing of any such action, (2) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent the Investors or Porsche required pursuant to this Section 5.02 7.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, provided that such agreement does not need to contain any provision prohibiting (including, including any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (23) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent the Investors (to the extent such nonpublic information has not been previously so furnished to Parent the Investors or its their Representatives).
(b) Notwithstanding anything to the contrary in this Agreement, prior to the receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a7.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with based on the advice of the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with based on the advice of the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with result in a violation of the fiduciary duties of the Company Board under applicable Law; provided, however, none of the Company, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize the Company to enter into any Alternative Company Acquisition Agreement unless:
(i) the Company Board provides Parent the Investors at least five (5) daysBusiness Days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the reasons therefor and shall include, as applicable, (A) the information with respect to the Company Superior Proposal that is specified in Section 5.02(c7.02(c), as well as a copy of such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days Business Days following such written notice described in the foregoing clause (i) (or such shorter period as is specified in this Section 5.02(b7.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent the Investors (to unless the extent Parent desires Investors have expressly agreed in writing (e-mail is sufficient) not to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s the Investors’ sole discretion, be proposed by Parent the Investors in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day Business Day period described in the foregoing clause (i) (or such shorter period as specified below in this Section 5.02(b) below7.02(b)), the Company Board concludes in good faith, after consultation with based on the advice of the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance (e-mail is sufficient) by the CompanyInvestors), that, as applicable (A) the Company Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make such Company Adverse Recommendation Change would be inconsistent with result in a violation of the fiduciary duties of owed by the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, 7.02 and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent the Investors of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b7.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days Business Days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent the Investors and the end of the original five (5) day 5)-Business Day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.0110.01, the Company Board shall submit this Agreement for approval adoption, and the other Company Proposals for approval, by the Company stockholders at the Stockholders’ Meeting (provided, however that, for so long as there is a Company Stockholders MeetingAdverse Recommendation Change, the Company Board shall nevertheless be required in such case to solicit proxies in favor of (it being understood that a proxy card will be deemed “in favor of” a matter to be acted upon by the Company’s stockholders if it provides the stockholder with the ability to either vote for, vote against or abstain from voting on, such matter) the adoption of this Agreement and the approval of the other Company Proposals); and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b7.02(b) with respect to a Company Superior Proposal, the Company shall only not enter into an Alternative Company Acquisition Agreement with respect thereto by terminating Agreement. For purposes of clarity, if there is a Company Adverse Recommendation Change, the Company may clearly and unambiguously disclose the Company Adverse Recommendation Change in the Joint Proxy Statement/Prospectus soliciting approval in favor of the adoption of this Agreement in accordance with Section 9.01(h)and the approval of the other Company Proposals.
(c) In addition to the obligations of Parent and the Company set forth in Section 5.02(a7.02(a) and or Section 5.02(b7.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent the Investors in writing (i) of any inquiriesinquiry, proposals proposal, indication of interest or offers with respect offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal that are received by, or any non-public information with regard to such any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal proposal, indication of interest or offer and the material terms and conditions of any such inquiries, proposals proposals, indication of interests or offers (and providing copies of all related written inquiries, proposals proposals, indication of interests or offers, including proposed agreements) and (ii) of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person making such Company Acquisition Proposal, information request or inquiry. In no event shall the Company begin providing any such information or engage in such discussions or negotiations prior to providing the Investors with the notice required by the preceding sentence. The Company thereafter shall (x) keep Parent the Investors reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hours) of the status of any material discussions or negotiations with respect to any such inquiries, proposal proposal, indication of interests or offers and the details of any material changes to the status and material terms of any such inquiries, proposals proposals, indication of interests or offers (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of any written inquiries, proposals proposals, indication of interests or offers, including proposed agreements and material modifications thereto)) and (y) substantially concurrently with the delivery to any such Person, provide to the Investors any information concerning the Company or any of the Company Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided or made available to the Investors or their Representatives.
Appears in 2 contracts
Sources: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
No Solicitation. (a) The Company shallSubject to Section 6.1(b) hereof, shall cause its Subsidiaries to and shall request that its Representativesfrom the Agreement Date until the Acceptance Time, immediately cease (i) any communications, discussions or negotiations with any Person that may be ongoing with respect to a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (iii) cooperating with, assisting in, participating in, or knowingly facilitating or encouraging a Company Acquisition Proposal andor, if applicableearlier, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such communications, discussions or negotiations occurring in the six (6) months prior to the date of this Agreement. From and after the date of this Agreement until the earlier to occur of the Effective Time or the date of valid termination of this Agreement in accordance with ARTICLE 9Section 7.1 hereof, the Company shall not, nor and the Company shall it permit any of cause its Subsidiaries toand their respective officers, nor shall it authorize or knowingly permit any of its Representatives to directors, employees, investment bankers, attorneys, accountants, consultants and other agents and advisors (and shall use reasonable best efforts to cause such Persons collectively, “Representatives”) not to), directly or indirectly, :
(Ai) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), providing non-public information) the submission or knowingly facilitate any inquiry or the making or submission announcement of any inquiryinquiries, proposal, indication of interest proposals or offer which constitutes, offers that constitute or would reasonably be expected to lead to, a Company result in an Acquisition Proposal, ;
(Bii) subject provide any non-public information concerning the Company or any of its Subsidiaries to Section 5.02(b), approve any Person in connection with or recommend, or publicly propose in response to approve or recommend, a Company an Acquisition Proposal, ;
(Ciii) subject to Section 5.02(b), approve or recommend, or publicly propose to approve or recommend, or execute or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding, in each case relating to a Company Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each an “Alternative Company Acquisition Agreement”), (D) enter into, continue or otherwise participate engage in any discussions or negotiations regarding with any Company Acquisition Proposal, or (E) agree to do any of the foregoing; provided, however, if, prior to the receipt of the Company Stockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) made after the date of this Agreement, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 5.02(b), furnish information Person with respect to any Acquisition Proposal;
(iv) approve, adopt, endorse or recommend any Acquisition Proposal; or
(v) enter into any agreement, letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or enter into any agreement, letter of intent or similar document requiring the Company to exempt any third party from the Person making restrictions contained in any state takeover or similar Laws or otherwise cause such Company Acquisition Proposal and engage in discussions restrictions not to apply to such third party or negotiations with such Person regarding such Company to any Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, that such agreement does not need to contain any provision prohibiting (including, any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives).
(b) Notwithstanding anything to the contrary contained in Section 6.1(a) hereof or any other provisions of this Agreement, if at any time prior to the receipt Acceptance Time, (i) the Company has received a bona fide written Acquisition Proposal (other than an Acquisition Proposal that arises as a result of a breach of any of the Company Stockholder Approvalprovisions set forth in Section 6.1(a) hereof) that is reasonably likely to result in a Superior Proposal, (ii) the Company Board may effect a Company Adverse Recommendation Change if (and only if): (I) (A) a written Company Acquisition Proposal that was not solicited in violation of Section 5.02(a) is made to the Company by a Third Party and such Company Acquisition Proposal is not withdrawn or (B) there has been a Company Intervening Event; (II) in the case of a Company Acquisition Proposal, the Company Board concludes determines in good faith, after consultation having consulted with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change take such action would be inconsistent with its fiduciary obligations to the fiduciary duties Company Shareholders and other stakeholders of the Company Board under applicable Law; provided, however(iii) prior to furnishing or making available any non-public information to, none or entering into discussions or negotiations with such Person, the Company gives Parent written notice of the identity of the Person making the Acquisition Proposal and of the Company’s intention to furnish or make available non-public information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions and use restrictions) at least as favorable to the Company as the provisions of the Confidentiality Agreement, and (iv) simultaneously with furnishing or making available any non- public information to such Person, the Company Board or any committee thereof shall make a Company Adverse Recommendation Change and/or authorize makes available such non-public information to Parent (to the extent the Company has not previously made available such non-public information to enter into any Alternative Company Acquisition Agreement unless:
(i) Parent), then the Company Board provides Parent at least five (5) days’ prior written notice of its intention to take such action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall include, as applicable, may (A) the furnish information with respect to the Company Superior Proposal that is specified in Section 5.02(c), as well as a copy of and its Subsidiaries to the Person making such Company Acquisition Proposal and any related Alternative Company Acquisition Agreement, or (B) the facts and circumstances engage in reasonable detail of the Company Intervening Event;
(ii) during the five (5) days following such written notice described in the foregoing clause (i) (discussions or such shorter period as is specified in this Section 5.02(b) below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of this Agreement that may, at Parent’s sole discretion, be proposed by Parent in response to such Company Superior Proposal or Company Intervening Event, as applicable; and
(iii) at the end of the five (5) day period described in the foregoing clause (i) (or such shorter period as specified in this Section 5.02(b) below), the Company Board concludes in good faith, after consultation negotiations with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed and irrevocably committed to in writing by Parent and capable of acceptance by the Company), that, as applicable (A) the Company Person making such Acquisition Proposal continues to be a Company Superior Proposal or (B) the Company Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that the failure to make regarding such Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Any amendment or modification to the conditionality, price or form of consideration of any Company Superior Proposal will be deemed to be a new Company Acquisition Proposal for purposes of this Section 5.02, and the Company shall promptly (but in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 5.02(b) with respect thereto; provided, however, that the “matching period” set forth above shall in such circumstance expire on the later of three (3) days after the Company Board provides written notice of such new Company Acquisition Proposal to Parent and the end of the original five (5) day period described in clause (ii) above; provided, further, (x) whether or not there is a Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 9.01, the Company Board shall submit this Agreement for approval by the Company stockholders at the Company Stockholders Meeting; and (y) in the event there is a Company Adverse Recommendation Change made in compliance with this Section 5.02(b) with respect to a Company Superior Proposal, the Company shall only enter into an Alternative Company Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 9.01(h).
(c) In addition to the obligations of Parent and the The Company set forth in Section 5.02(a) and Section 5.02(b), the Company (i) shall promptly (and in any event within 24 hours) notify Parent in writing of any inquiries, proposals or offers with respect to a Company Acquisition Proposal that are received by, or any non-public information with regard to such Company Acquisition Proposal is requested from, or any discussions or negotiations are sought to be initiated regarding such Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the inquiry, proposal or offer and the material terms and conditions of any such inquiries, proposals or offers (and providing copies of all related written inquiries, proposals or offers, including proposed agreements) and (ii) thereafter shall keep Parent reasonably informed, on a reasonably prompt basis (and, in any event, within 24 hoursone (1) Business Day) notify Parent in the event that the Company, any Subsidiary of the Company or any of their respective Representatives receives any Acquisition Proposal, including the identity of the Person making such Acquisition Proposal, and the material terms and conditions thereof and, if applicable, shall provide Parent with copies of any written requests, proposals or offers from the Person making such Acquisition Proposal promptly after receipt thereof. The Company shall keep Parent informed with respect to: (i) the status of any material discussions or negotiations with respect to any such inquiries, proposal or offers Acquisition Proposal; and the details of any material changes to (ii) the status and material terms of any such inquiriesmaterial modification thereto.
(d) The Company shall, proposals and shall cause each of its Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any solicitations or offers discussions with any Person ongoing as of the date of this Agreement with respect to any actual or potential Acquisition Proposal.
(including e) The Company agrees not to release or permit the release of any material amendments thereto Person from, or to waive or permit the waiver of any change provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which the Company is a party or under which the Company has any rights to the scope or material terms or conditions thereofextent permitted thereunder, and including copies will use commercially reasonable efforts to cause each such agreement to be enforced (it being understood that any automatic termination of any written inquiries, proposals such provision resulting from the execution and delivery of this Agreement shall not constitute a breach of this Section 6.1(e)). The Company also shall promptly request each Person that has executed a confidentiality agreement with the Company or offers, including proposed agreements and material modifications thereto)its Subsidiaries within the last 18 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in the Company to return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company.
Appears in 2 contracts
Sources: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)