No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1: (i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal. (b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) Neither the Company shall notnor any of its subsidiaries shall, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiariessubsidiaries authorize or encourage any of their respective officers, in each case for directors, employees, agents, accountants, counsel, investment bankers or financial advisors (collectively, “Representatives”) or affiliates (other than Parent or any of its subsidiaries, other than the purpose of encouraging Company or facilitating an Acquisition Proposal its subsidiaries, and their respective Representatives) to (and the Company shall advise all such Representatives, affiliates and employees that they are not so authorized) (i) directly or indirectly, initiate, solicit or encourage, or take any action to facilitate the making of, any Takeover Proposal, or (Cii) directly or indirectly engage in any discussions or negotiations with, or provide any information or data to, or afford any access to the properties, books or records of the Company or any subsidiary to, or otherwise assist, facilitate or encourage, any Person (other than Parent or any affiliate or associate thereof) relating to any Takeover Proposal, or (iii) approve or enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect principle, acquisition agreement or similar agreement relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreementTakeover Proposal; provided, contract or commitment requiring however, that nothing contained in this Section 5.14 shall prohibit the Company from furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide written Takeover Proposal if: (1) such action is taken prior to abandonobtaining the Company Stockholder Approval or the Parent Stockholder Approval, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii2) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions Special Committee or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company, upon recommendation of the Company or any committee thereof determines in good faithSpecial Committee, after consultation with the Company Financial Advisor and outside legal counsel, determines in good faith that the failure to take such Acquisition Proposal constitutesaction would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, (3) the Company Special Committee or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company, upon recommendation of the Company Special Committee, after consultation with an independent, nationally recognized financial advisor (which may be the Special Committee Banker), 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 such a Takeover Proposal 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 inconstitute, 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 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 likely to lead to, a Superior Proposal and/or (as defined below); and (4) prior to taking such action the Company (x) provides prompt notice to Parent to the effect that it is taking such action, (y) direct any Persons to this Agreement, including receives from such Person making the specific provisions of this Section 5.3.
(c) From and after the date hereof, and except to the extent expressly prohibited by a unsolicited bona fide written offer or proposal an executed confidentiality agreement in place as of the date hereofreasonably customary form and approved by Parent, 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 (iiz) complies with the identity provisions 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 hereofSection 5.14(b)(ii).
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Information Solutions Inc), Merger Agreement (Fidelity National Financial Inc /De/)
No Solicitation. (ai) Subject to Sections 5.4(b) From and (c) and except as permitted by after the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) in accordance with its terms or the Company shall notClosing, nor shall none of the Company permit any of Seller, its Subsidiaries to, nor shall Affiliates or the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose toIndividual Tergas Owners shall, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, through any officer, director, employee, financial advisor, representative or agent:
(A) solicit, initiate, facilitate or knowingly encourage any inquiries, inquiries or proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposalproposal or offer for (w) a transaction pursuant to which any Person or entity (or group of Persons or entities) (a “Third Party”) other than the Buyer Parties or any Affiliates and assignees thereof, and may acquire the Assets, the Mexican Assets, the Tergas Option, the Tergas Shares or the Shares, (ivx) the Board of Directors a transaction pursuant to which a Third Party may acquire more than 50% of the Company determines in good faith after consultation with outside legal counsel outstanding Equity Interests of the Seller pursuant to a tender offer or exchange offer or otherwise, (y) a merger or other business combination involving the Seller pursuant to which any Third Party may acquire more than 50% of the outstanding Equity Interests of the Seller or of the entity surviving such merger or business combination, or (z) any other transaction (i) pursuant to which any Third Party may acquire control of assets of the Seller having a fair market value equal to more than 50% of the fair market value of all the assets of the Seller immediately prior to such transaction, other than the transaction contemplated by this Agreement or (ii) that could materially affect the failure ability of Seller to take consummate the actions transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in clause (A) or this Agreement as an “Acquisition Proposal”),
(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 engage in negotiations or discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate inconcerning, 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 provide 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 relating to, any Acquisition Proposal,
(C) agree to Parent. Notwithstanding anything to the contrary contained or recommend any Acquisition Proposal; or
(D) furnish information to, or enter into discussions or negotiations with, any Third Party in this Agreement, the Company and its Representatives may (without any determination by the Board of Directors of the Company or any committee thereof or consultation connection with the Company Financial Advisor or outside legal counsel) (x) following the receipt of an unsolicited bona fide written 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 “Unsolicited Acquisition Proposal made Proposal”) by such Third Party so as to determine whether such or recommending an Unsolicited 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 holders of this Section 5.3the Equity Interests of the Seller.
(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 Seller will immediately cease any material developmentsand all existing activities, discussions or negotiations regarding with any parties conducted prior to the execution of this Agreement of the nature described in Section 6.1(e)(i) and will use reasonable efforts to obtain the return of any confidential information furnished to any such parties.
(iii) Promptly after receipt by the Seller of any Unsolicited Acquisition Proposal or any request for nonpublic information in connection with an Unsolicited Acquisition Proposal or for access to the properties, books or records of the Seller by any Third Party that informs the Seller that it is considering making, or has made, an Unsolicited Acquisition Proposal, Seller shall promptly inform Buyer Parties of such proposal and furnish to Buyer Parties a copy of any such inquiry or proposal or if not in writing, a written description thereof, including the name of such Third Party and the proposed purchase price 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)proposal.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Rio Vista Energy Partners Lp), Purchase and Sale Agreement (Penn Octane Corp)
No Solicitation. Except to the extent the Company would be permitted under Section 6.04 of the Merger Agreement to take such actions at the applicable time (a) Subject and subject to Sections 5.4(b) compliance with the notice, disclosure and (c) and except as permitted by other obligations that the Company would be required to comply with in connection therewith), from the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Effective Time or or, if earlier, the termination of this Agreement pursuant to Section 8.1:
(i) the Company in accordance with its terms, each Stockholder shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall respective representatives not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, propose or knowingly take any action to facilitate or knowingly encourage (including by way of furnishing non-public information) the submission of any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Takeover Proposal or (C) enter into the making of 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, proposal that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior any Takeover Proposal; (ii) conduct, and (iv) 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) continue, engage in, solicit, 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 otherwise participate in any discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate inwith, 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 disclose any non-public information except pursuant relating 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 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 its Subsidiaries 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 afford access to the extent expressly prohibited by a confidentiality agreement in place as of the date hereofbusiness, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposalproperties, which notification shall include (i) a copy of the applicable written Acquisition Proposal (orassets, if oralpersonnel, 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 books 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 records of the Company or any of its Subsidiaries is a partyto, or participate in, facilitate, encourage, or knowingly assist any effort by, any third party that could reasonably be expected to make, or has made, any Takeover Proposal or (iii) enter into, approve or recommend any understanding, 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, or agree or commit to or agree to facilitate any of the foregoing. Each Stockholder shall, and shall cause its respective representatives to, immediately cease and be terminated any and all existing discussions or negotiations with any Person (other than Parent) conducted theretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with such Stockholder the extent the Board prompt return or destruction of Directors of the Company all confidential information previously furnished to such Person or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawits representatives.
Appears in 2 contracts
Sources: Voting and Support Agreement (GB Aero Engine Merger Sub Inc.), Voting and Support Agreement (Edac Technologies Corp)
No Solicitation. (a) Subject The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to Sections 5.4(b) be terminated any and (c) all existing activities, discussions or negotiations with any Third Person and its Representatives concerning any Acquisition Proposal or discussion that could lead to an Acquisition Proposal, cease providing any further information with respect to the Company, its Subsidiaries or any Acquisition Proposal to any such Third Person or its Representatives, terminate access for any such Third Persons and their Representatives to any physical or electronic data room, and request that any such Third Person and its Representatives in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company to such Persons in connection with such activities, discussions or negotiations return or destroy all such information in accordance with any confidentiality agreement or similar agreement between the Company and such Third Person. From and after the date of this Agreement, except as expressly permitted by this Section 5.36.5, until the earlier to occur of Company and its Subsidiaries shall not (and the Acceptance Time Company shall direct its and their respective Representatives not to), directly or the termination of this Agreement pursuant to Section 8.1:
indirectly, (i) solicit, request, initiate or knowingly facilitate or encourage (including by way of furnishing or disclosing information) any proposal, offer or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal, or take any other action to facilitate or initiate the making of any Acquisition Proposal, (ii) enter into, continue or otherwise participate in discussions or negotiations with, furnish or make available any information, or afford access to the business, properties, assets, books or records of the Company shall not, nor shall the Company permit or any of its Subsidiaries to, nor shall the Company authorize any of its Representatives Third Person in connection with any Acquisition Proposal or any of its Subsidiary’s Representatives toproposal, and the Company shall not publicly propose to, directly offer or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers inquiry that constitute, or that would could reasonably be expected to lead to, an Acquisition Proposal, (Biii) engage inamend or grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, continue unless the Company Board after considering advice from outside legal counsel to the Company that the failure to waive or otherwise release or fail to enforce such provision would reasonably be expected to be inconsistent with its fiduciary duties under applicable Laws of the State of Delaware, (iv) approve any Third Person becoming an “interested stockholder” under Section 203 of the DGCL, (v) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract relating to an Acquisition Proposal (other than the confidentiality agreements permitted under Section 6.5(b)(iii)) (each, an “Acquisition Agreement”) or (vi) propose publicly to do any of the foregoing. Nothing in this Section 6.5 shall prohibit the Company, its Subsidiaries and its and their respective Representatives from informing any Person of the existence of the provisions contained in this Section 6.5 or clarifying the terms and conditions thereof. It is understood that any violation of the restrictions on the Company set forth in this Section 6.5 by any Subsidiary of the Company or any of their respective Representatives shall be deemed a breach of this Section 6.5 by the Company.
(b) Notwithstanding Section 6.5(a), at any time prior to obtaining the Company Stockholder Approval, the Company, its Subsidiaries and its and their respective Representatives may participate in any discussions or negotiations regarding, and furnish or disclose information (including non-public information) in response to, an unsolicited, bona fide written Acquisition Proposal which was made after the date of this Agreement and did not result from any breach of this Section 6.5 that is submitted to the Company, any of its Subsidiaries or its or their respective Representatives; provided that (i) the Company Board determines in good faith, based on the information then available and after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, (ii) the Company Board determines in good faith, based on the information then available and after consultation with its outside legal counsel, that failing to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, (iii) prior to participating in discussions or negotiations with, or furnishing or disclosing any non-public information to, a Third Party regarding an Person with respect to such Acquisition Proposal, the Company receives from such Third Person an executed confidentiality agreement containing terms not less favorable to the Company than the terms then applicable under the Confidentiality Agreement and (iv) promptly (and in any event within 48 hours) after furnishing or furnish making available any non-public information concerning the Company and its Subsidiaries to any such Third Party Person, the Company furnishes or makes available such information to Parent or provide its Representatives (to the extent such information has not been previously furnished or made available by the Company to Parent or its Representatives).
(c) The Company shall notify Parent in writing promptly (but in no event later than 24 hours) after receipt by the Company, its Subsidiaries or any of their respective Representatives of any Acquisition Proposal, any bona fide written indication that a Third Party Person intends to make an Acquisition Proposal or any written request for information relating to the Company and its Subsidiaries or for access to the businessesbusiness, properties, assets books or personnel records of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating by any Third Person that intends to make an Acquisition Proposal 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 connection therewith. The Company shall identify the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shallThird Person making, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 of, any such Acquisition Proposal) and , indication or request (ii) the identity of the Third Party making such Acquisition Proposalincluding any material changes thereto). 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 indication or request (including any change in price or form of consideration or other material amendment changes thereto), including by providing a copy of material documentation relating thereto that is exchanged between the Third Party and shall promptly (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty four (24) but in no event later than 24 hours after receipt thereof (except receipt) provide to the extent expressly prohibited by a confidentiality agreement in place as Parent copies of the date hereof).
(d) The Company agrees not all correspondence and written materials sent or provided 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 that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters).
(d) Except as expressly permitted by this Section 6.5, the Company Board shall not (i) withhold, withdraw, modify, amend or qualify, or propose publicly or resolve to withhold, withdraw, modify, amend or qualify, in any manner adverse to Parent or Merger Sub, the Company Recommendation (a party“Change in Company Recommendation”) (it being understood that the Company Board may refrain from taking a position with respect to an Acquisition Proposal until the close of business of the tenth Business Day following a written request by Parent to the Company Board to affirm the Company Recommendation after the commencement of a tender or exchange offer in connection with such Acquisition Proposal without such action being considered an adverse modification), (ii) adopt, approve, authorize or recommend or otherwise declare advisable, or propose publicly to adopt, approve, authorize or recommend or otherwise declare advisable, any Acquisition Proposal, (iii) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or a committee thereof) to the extent Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Board of Directors of Exchange Act (or any substantially similar communication) or (iv) enter into any Acquisition Agreement.
(e) If, prior to obtaining the Company or any committee thereof determines Stockholder Approval, the Company receives an Acquisition Proposal that the Company Board concludes in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, constitutes a Superior Proposal, the Company Financial Advisor Board may effect a Change in Company Recommendation or terminate this Agreement pursuant to Section 8.1(c)(ii) to enter into a definitive, written agreement concerning such Superior Proposal, if, and only if:
(i) the Company shall have provided prior written notice to Parent, at least four Business Days in advance (the “Notice Period”), of its intention to effect a Change in Company Recommendation pursuant to this Section 6.5(e) or to terminate this Agreement to enter into a definitive, written agreement concerning a Superior Proposal pursuant to Section 8.1(c)(ii), which notice shall specify the basis for such Change in Company Recommendation or termination and the identity of the party making such Superior Proposal, the material terms and conditions thereof and all material documents relating to such Acquisition Proposal; provided that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.5(e) with respect to such new written notice (it being understood that the “Notice Period” in respect of such new written notice shall be two Business Days);
(ii) the Company Board shall have determined in good faith, after consultation with outside legal counsel, that failure to do so effect a Change in Company Recommendation or terminate this Agreement to enter into a Superior Proposal, as applicable, would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law and the Company shall have complied in all material respects with all of its obligations under this Section 6.5;
(iii) after providing the notice contemplated by Section 6.5(e)(i), the Company shall have discussed and negotiated, and shall have caused its Representatives to discuss and negotiate, with Parent and its Representatives in good faith (to the extent Parent has requested that the Company discuss and negotiate with Parent and its Representatives) during the Notice Period such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to effect a Change in Company Recommendation or terminate this Agreement to enter into a Superior Proposal, as applicable; and
(iv) (A) the Company Board shall have considered in good faith any proposed changes to this Agreement offered in writing by Parent no later than 5:00 p.m. (Eastern Time) on the last day of the Notice Period, and, taking into account any such proposed changes, shall have determined in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that the Superior Proposal would continue to constitute a breach Superior Proposal if such changes were to be given effect and the failure to take such action would continue to be inconsistent with the Company Board’s fiduciary duties to the stockholders of the directors’ Company under applicable Law and (B) in the case of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Acquisition Agreement concerning a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 8.1(c), including paying the Company Termination Fee in accordance with Section 8.2(h).
(f) Nothing contained in this Section 6.5 shall prohibit the Company Board, directly or indirectly through its Representatives, from (i) complying with Rule 14e-2(a) under the Exchange Act with respect to any Acquisition Proposal; provided that any such position taken or disclosed that relates to an Acquisition Proposal shall be deemed to be a Change in Company Recommendation unless the Company Board reaffirms the Company Recommendation in such statement or in connection with such Acquisition Proposal requiring compliance with Rule 14e-2(a) no later than the ten business day deadline set forth in Rule 14e-2(a) or (ii) making a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of any Acquisition Proposal or an express reaffirmation of the Company Recommendation.
(g) Notwithstanding anything to the contrary set forth in this Agreement, other than in connection with an Acquisition Proposal received by the Company or its Subsidiaries, the Company Board may effect a Change in Company Recommendation (and the Company shall not be required to include the Company Recommendation in the Proxy Statement/Prospectus) in response to an Intervening Event if the Company Board shall have determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law; provided, that, (i) the Company promptly notified Parent in writing at least four Business Days before taking such action, of its intention to do so, attaching a reasonably detailed description of the facts relating to such Change in Company Recommendation, (ii) during such four Business Day period, if requested by Parent, the Company and its Representatives shall have discussed and negotiated in good faith (to the extent that Parent has requested that the Company discuss and negotiate) with Parent and its Representatives regarding any proposal by Parent to amend the terms of this Agreement in response to such potential Change in Company Recommendation; and (iii) after such four Business Day period, the Company Board shall have determined in good faith, after considering advice from its outside legal counsel, and taking into account any proposal by Parent to amend the terms of this Agreement made during such period, that the failure to take such action would still be inconsistent with its fiduciary duties under Applicable applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Forestar Group Inc.), Merger Agreement (Horton D R Inc /De/)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the Company authorize any of its Representatives or any of its Subsidiary’s Representatives Company Subsidiary to, and the Company shall not publicly propose to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Company Takeover Proposal (other than as defined in Section 5.02(e)), (ii) enter into any agreement with respect to Parent and Purchaser), any Company Takeover Proposal or (Aiii) solicit, initiate, facilitate directly or knowingly encourage indirectly participate in any inquiries, proposals discussions or offers that constitutenegotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition any Company Takeover Proposal; provided, (B) engage inhowever, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish that prior to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel receipt of the Company or any of its SubsidiariesStockholder Approval, the Company may, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect response to an Acquisition unsolicited bona fide Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal which 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 5.02(a) and which the Company who is not an officer or director of the Company)Board determines, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor outside counsel and outside legal counselfinancial advisors, that such Acquisition Proposal constitutes, or could may reasonably be expected to lead to, to a Superior ProposalCompany Proposal (as defined in Section 5.02(e)), and subject to compliance with Section 5.02(c), (iv) 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 (Ax) furnish information and data with respect to the Company to the person making such Company Takeover Proposal and its Subsidiaries Representatives pursuant to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel a customary confidentiality agreement not less restrictive of the Company and its Subsidiaries other party than the Confidentiality Agreement (as defined in Section 6.02) and (By) 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 person and its Representatives may (without regarding any determination Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by the Board of Directors any Representative of the Company or any committee thereof Company Subsidiary, whether or consultation with not such person is purporting to act on behalf of 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 any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.3 5.02(a) by the Company.
(except for b) Neither the Company Board nor any immaterial breach committee thereof shall (i) withdraw or modify in a manner adverse to Parent or Sub, or propose to withdraw or modify in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board of this Section 5.3 by a Representative Agreement or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or propose to approve or recommend, any Company Takeover Proposal. Notwithstanding the foregoing, if, prior to receipt of the Company who is not an officer or director of Stockholder Approval, (v) 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, Company Board has received a Superior Proposal and/or Company Proposal, (yw) 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 as a confidentiality agreement in place as of the date hereof, result thereof the Company Board 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 have determined in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach it is required for the purpose of the directors’ fulfilling its fiduciary duties under Applicable applicable Law, (x) the Company has notified Parent in writing of the determination described in clause (w) above, (y) at least three business days following receipt by Parent of the notice received in clause (x) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (x) above, the Company Board determines that such Superior Company Proposal remains a Superior Company Proposal in accordance with clause (w) above, and (z) the Company is in compliance with this Section 5.02, the Company Board may withdraw or modify its approval or recommendation of the Merger and this Agreement.
(c) The Company promptly shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to or that would reasonably be expected to lead to any Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the material terms of any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent informed of the status (including any change to the terms thereof) of any such Company Takeover Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of the Company Takeover Proposal (including any amendments or supplements thereto) and all such other material information provided in writing to the Company by the party making such Company Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
No Solicitation. (a) Subject to Sections 5.4(b) The Company shall not, and (c) shall cause the Company Subsidiaries and except as permitted by this Section 5.3the Company’s and the Company Subsidiaries’ respective Representatives not to, until the earlier to occur of the Acceptance Time directly or the termination of this Agreement pursuant to Section 8.1indirectly:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constituteencourage, or that would reasonably be expected take any action to lead knowingly facilitate the submission of, or any inquiries with respect to, an any Acquisition Proposal, Proposal by a Third Party,
(Bii) engage in, continue or otherwise participate in any discussions or negotiations with any a Third Party regarding an Acquisition Proposalor such Third Party’s Representatives regarding, or furnish to any Third Party or Third Party’s Representative, any information or provide to data with respect to, or otherwise cooperate in any Third Party access to the businessesway with respect to, propertiesor assist or participate in, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or any potential Acquisition Proposal,
(Ciii) enter into any letter of intent, memorandum of understanding, acquisition agreement or other agreement, contractarrangement, commitment or agreement in principle with respect to understanding that contemplates an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) by such Third Party or enter into any agreement, contract or commitment requiring the Company to terminate, abandon, terminate or fail to consummate the transactions contemplated by this Agreement; andTransactions, or
(iiiv) the Company shallapprove, and shall cause adopt, endorse, or recommend to its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate shareholders or any existing discussions or negotiations with other person any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement; provided, ifhowever, at any time that prior to the Acceptance TimeMerger being approved by the Required Shareholder Vote, (i) the Company receives a and its Representatives, in connection with any bona fide 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 received by a Representative of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof of its Representatives without any material violation of clause (i) above, may furnish information and data to a Third Party or such Third Party’s Representatives and take any other action referred to in clause (ii) above, if:
(A) the Company Board determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failing to take such action would result in a breach by the Company Board of its fiduciary duties to the Company and its shareholders under applicable Law,
(B) the Company Board determines in good faith that the Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal,
(C) at least forty-eight (48) hours prior to initially furnishing or otherwise disclosing any such information or data or initiating or participating in any such negotiations or discussions with such Third Party or such Third Party’s Representatives, the Company gives Parent written notice of such Acquisition Proposal, including a copy thereof and the identity of such Third Party, and of the Company’s intention to furnish information or data to or to engage in negotiations or discussions with such Third Party or such Third Party’s Representatives, and
(ivD) prior to providing any information or data to such Third Party or Third Party’s Representatives, the Board Company enters into a confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement and which shall not contain restrictions that would prevent the Company from complying with its disclosure obligations in this Section 6.2. In addition, prior to or contemporaneously with providing any information or data (whether initially or pursuant to subsequent deliveries of Directors information or data) to such Third Party or such Third Party’s Representatives, the Company shall furnish or otherwise make available to Parent such information or data that have not been previously furnished or otherwise made available to Parent, if any. After receipt of any Acquisition Proposal, request, or inquiry by the Company, it shall promptly (and in any event within twenty-four (24) hours or, if such time is not on a Business Day, then on the next Business Day) keep Parent informed in all material respects of the status and details (including the material terms of the Acquisition Proposal and material amendments or proposed material amendments) of any such Acquisition Proposal, request, or inquiry. Unless previously provided pursuant to section (C) above, the Company shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is expected to consider any Acquisition Proposal or any such inquiry or to consider providing information to any person or group in connection with an Acquisition Proposal or related inquiry.
(b) Neither the Company Board nor any committee thereof shall:
(i) withdraw, modify, amend, or qualify, in any manner adverse to Parent or Merger Sub, the approval or recommendation by the Company Board or any committee thereof of this Agreement, the Merger, or any other Transaction (the “Company Board Recommendation”), or make any public statement inconsistent with the Company Board Recommendation (any of the foregoing, a “Change in Recommendation”),
(ii) fail to recommend against acceptance of a publicly announced tender or exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after the earlier of the commencement of such offer and the Company’s receipt of a written request from Parent to recommend against acceptance of such offer, or
(iii) fail to reconfirm the Company Board Recommendation within ten (10) Business Days after the Company receives a written request from Parent to do so; unless, in the case of clause (i), clause (ii), or clause (iii) of this sentence, the Company Board has received a Superior Proposal not in violation of Section 6.2(a), or there is another event that was neither known to nor reasonably foreseeable by any member of the Company Board, assuming consultation with the executive officers of the Company, as of or prior to the date of this Agreement, and did not result from or arise out of the announcement or pendency of the Merger, any action required to be taken (or to be refrained from being taken) pursuant to this Agreement, or the receipt of an Acquisition Proposal, the occurrence of which event has a material adverse effect on the Company Board’s ability to recommend the consummation of the Merger without breaching its fiduciary duties to the Company and its shareholders under applicable Law (such event, an “Intervening Event”), and the Company Board, prior to the Company General Meeting, determines in good faith (after consultation with outside legal counsel and, in respect of the Intervening Event, after consulting with a financial advisor of nationally recognized reputation) that in light of the receipt of such Superior Proposal or the occurrence of the Intervening Event, failure to take do so (i.e., that failing to make a Change in Recommendation, that recommending against acceptance of a tender or exchange offer in the actions referred to circumstances described in clause (Aii) of this sentence, or that reconfirming the Company Board Recommendation in the circumstances described in clause (Biii) below of this sentence) would constitute result in a breach by the Company Board of its fiduciary duties to the Company and its shareholders in accordance with applicable Law.
(c) Neither the Company Board nor any committee thereof shall approve or recommend any Acquisition Proposal by a Third Party or cause or permit the Company to take any action contemplated by Section 6.2(a)(iii). Notwithstanding the foregoing, prior to the commencement of the Company under Applicable LawGeneral Meeting (which commencement shall not be deemed to have occurred if such general meeting is postponed or adjourned in accordance with Section 6.5), then the Company may Board and the Company may, in response to a written Acquisition Proposal received by the Company and subject to compliance with the terms of Section 6.2(a) in connection with such Acquisition Proposal (Aor any related Acquisition Proposal), take any of the actions described in the first sentence of this Section 6.2(c) furnish information (each a “Specified Action”) if, and data only if:
(i) the Company Board shall have determined in good faith (after consultation with respect outside legal counsel) that failing to take such Specified Action would result in a breach by the Company Board of its fiduciary duties to the Company and its Subsidiaries to shareholders under applicable Law;
(ii) the Third Party making Company Board shall have determined that such Acquisition Proposal constitutes a Superior Proposal (a “Designated Superior Proposal”);
(iii) the Company Board shall have provided written notice to Parent that it intends to take a Specified Action in response to such Designated Superior Proposal (a “Notice of Designated Superior Proposal”), which notice shall attach the most current form or draft of any written agreement providing for the transaction contemplated by such Designated Superior Proposal; and
(iv) Parent shall not have made, during the period commencing upon its receipt of such Notice of Designated Superior Proposal and afford such Third Party access ending five (5) Business Days thereafter (the “Matching Period”), an offer or proposal that the Company Board determines in good faith, after consultation with a financial advisor of nationally recognized reputation, is at least as favorable, from a financial point of view, to the businessesshareholders of the Company as such Designated Superior Proposal. During the Matching Period, properties, assets and personnel of the Company and its Subsidiaries Representatives shall meet with Parent and (B) enter into, maintain and participate negotiate in discussions or negotiations good faith with the Third Party making such Acquisition respect to any revisions to this Agreement Parent may propose. The Company shall deliver to Parent a new Notice of Designated Superior 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 respect to (1) will not, and will not permit its Subsidiaries each material revision or material modification to a Designated Superior Proposal that was the subject of a previous Notice of Designated Superior Proposal where such revision or modification is adverse to the Company or its or their Representatives toshareholder, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will promptly provide each other material revision or material modification to a Designated Superior Proposal that was the subject of a previous Notice of Designated Superior Proposal where such revision or modification is made during a Matching Period, and a new Matching Period of three (3) Business Days shall commence for purposes of this Section 6.2(c) under either of the circumstances described in clauses (1) and (2) above at the time Parent any material non-public information concerning receives the Company or its Subsidiaries or access provided to such Third Party which was not previously provided to Parentnew Notice of Designated Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to take a Specified Action (excluding any non-binding letter of intent or memorandum of understanding) unless (A) any and its Representatives may all such Matching Periods have expired, (without any determination by the Board of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counselB) (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 constitutesAgreement has been, or could reasonably be expected concurrently is, terminated by its terms pursuant 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 Proposal8.1(i) and (iiC) the identity Company has paid, or concurrently with the taking of a Specified Action, pays by wire transfer of immediately available funds, the Third Party making such Acquisition Proposal. The Company shall thereafter keep Fee due to 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 pursuant to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)Section 8.3.
(d) The Company agrees immediately shall on the date hereof, and shall cause its Representatives immediately to, cease and cause to be terminated any discussions or negotiations with any Third Parties (other than Parent and its Representatives) that may be ongoing with respect to any Acquisition Proposal, and shall immediately request the return of all confidential information regarding the Company provided to any such party prior to the date of this Agreement.
(e) Nothing contained in this Section 6.2 shall prohibit the Company from taking and disclosing to its shareholder a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided that neither the Company nor the Company Board nor any committee thereof shall, except as permitted by Sections 6.2(b) and 6.2(c), withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement, the Transactions or approve or recommend or enter into, or propose publicly to approve or recommend or enter into, any Acquisition Proposal, including a Superior Proposal.
(f) Unless such actions are taken in connection with a termination of this Agreement in accordance with Section 8.1(g) or 8.1(i), the Company shall not to release or permit the release of any Person Third Party in connection with an Acquisition Proposal from, or to waive or permit the waiver or termination of any provision of, and shall take such steps to enforce as are requested by Parent, any confidentialityconfidentiality or standstill agreement entered into by the Company and such Third Party.
(g) Without limiting the generality of the foregoing, “standstill” or similar agreement to which Parent, Merger Sub and the Company acknowledge and hereby agree that any material violation of the restrictions set forth in Section 6.2(a) by any Representative of the Company or any of its Subsidiaries is a party, other than shall be deemed to the extent the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute be a breach of Section 6.2(a) by the directors’ fiduciary duties Company. The Company shall notify its Representatives of the restrictions under Applicable LawSection 6.2(a) promptly (and in any event within one (1) Business Day) after the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Retalix LTD), Merger Agreement (Retalix LTD)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, From the date hereof until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) its terms or the Effective Time, each of Parent and the Company shall not, agrees that neither it nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of the officers and directors of it or its Representatives Subsidiaries shall, and that it shall use reasonable best efforts to cause its and its Subsidiaries’ Employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiary’s Representatives toSubsidiaries) (collectively, “Representatives”) not to (and the Company shall not publicly propose authorize any of them to, ) directly or indirectly indirectly: (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, encourage, knowingly facilitate or knowingly encourage induce any inquiries, proposals or offers that constituteinquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 5.3(g)), (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes or may reasonably be expected to lead to, an any Acquisition Proposal, (Biii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Person with respect to any Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access except as to the businesses, properties, assets or personnel existence of the Company provisions of this Section 5.3, (iv) approve, endorse or recommend any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal (except to the extent specifically permitted pursuant to Section 5.3(d)), or (Cv) enter into any letter of intent, agreement, contract, commitment intent or agreement in principle with respect similar document or any Contract contemplating or otherwise relating to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreementtransaction contemplated thereby. Parent and the Company, contract or commitment requiring as the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shallcase may be, and shall cause its their respective Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, will immediately cease any and terminate any all existing activities, discussions or negotiations with any Third Party theretofore third parties conducted by the Company, its Subsidiaries or their respective Representatives heretofore with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 5.3itself.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and after the date hereof, except as specifically permitted by in this Section 5.36.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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, directly or indirectly: (i) solicit, initiate, knowingly facilitate or knowingly encourage any inquiries with respect to the submission or the announcement of any Acquisition Proposal; (ii) participate in discussions or negotiations regarding or furnish any non-public information except pursuant relating 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 of Directors of the Company or any committee thereof of its Subsidiaries with respect to, or consultation with the Company Financial Advisor otherwise cooperate in any way with, any effort or outside legal counselattempt by any Person (other than Parent or its Affiliates) (x) following the receipt to make an inquiry in respect of an Acquisition Proposal from a Third Party or make any proposal or offer 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 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 Superior letter of intent, memorandum of understanding or other agreement with any Person, other than Parent or its Affiliates, relating to an Acquisition Proposal and/or or (yiv) direct waive any Persons to this Agreement, including Standstill Agreement (as defined below) or voting restriction contained in the specific 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 5.36.3, 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, and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof, the Company shall notify Parent as promptly soon as practicable (and but in any event within twenty-four (24) hours) notify Parent after receipt of (i) any Acquisition Proposal or indication that any Person is considering making an 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) any request for non-public information relating to the identity Company or any of its Subsidiaries or (iii) any request for access to the properties, assets or the books and records of the Third Party making such Company or its Subsidiaries that the Company reasonably believes is reasonably likely to lead to an Acquisition Proposal. The Company shall thereafter 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 reasonably informed on a reasonably current basis of the status and the material details of any material developments, discussions or negotiations regarding any such Acquisition Proposal, indication or request and the material terms and conditions thereof shall notify Parent as soon as practicable (including but in 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) event within twenty twenty-four (24) hours after receipt thereof hours) of any material change in the terms of any such Acquisition Proposal, indication or request (except including whether such Acquisition Proposal, indication or request has been withdrawn or rejected and of any material change to the extent expressly prohibited by terms thereof) and concurrently provide a confidentiality agreement in place as copy of any document received from or on behalf of the date hereof)Person making such Acquisition Proposal, indication or request relating to any such material development.
(d) The 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 agrees not to release or permit the release of by any Person from(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 waive the Company or permit any of its Subsidiaries or giving access to the waiver properties, assets or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any 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 partyparty to any Standstill Agreement with the Company or any of its Subsidiaries, other than to the extent (ii) the Board of Directors of the Company or any committee thereof determines in good faith, faith (after consultation with the Company Financial Advisor Company’s legal and outside financial advisors) that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal and (after consultation with the Company’s legal counsel, advisor) that the failure to do so take such action would constitute reasonably be expected to result in a breach of the directors’ fiduciary duties to the stockholders of the Company under Applicable Lawapplicable 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) 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 6.3, 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 approve, endorse or recommend, any Acquisition Proposal or cause the Company to enter into any letter of intent, agreement in principle or other agreement with respect to any Acquisition Proposal (other than a confidentiality agreement permitted by Section 6.3(d)(iv)(A)). Notwithstanding the foregoing, if, at any time prior to the Acceptance Date, the Board of Directors of the Company determines in good faith (after consultation with the Company’s legal and financial advisors) that an Acquisition Proposal constitutes a Superior Proposal, or that any material event or circumstance relating to the business prospects of the Company not known by the Board of Directors of the Company as of the date hereof (or if known, the consequences of which are not known or reasonably foreseeable by the Board of Directors of the Company as 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 the Superior Proposal or Intervening Event and terminate this Agreement in accordance with Section 8.1(c)(ii), but only if (A) the Company’s Board of Directors determines in good faith (after consultation with the Company’s legal advisors) that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Laws, (B) the Board of Directors of the Company provides Parent with at least four (4) Business Days’ advance written notice (provided however, that during the five (5) 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 four (4) Business Day period (or, where applicable, a two (2) Business Day period, the “Notice Period”), the Company and its Representatives 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 (after taking into account any agreed modifications to the terms of this Agreement) 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) Business Days prior to the initial Expiration Date, one (1) Business Days), the Board of Directors of the Company maintains its determination (after taking into account any agreed modifications to the terms of this Agreement).
(f) Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted to disclose to the stockholders of the Company a position with respect to an Acquisition Proposal required by Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act; provided, however, that the Board of Directors of the Company shall first provide Parent the notice and opportunity to negotiate an amendment to this Agreement in the manner provided in Section 6.3(e)(B) and Section 6.3(e)(C) above.
Appears in 2 contracts
Sources: Merger Agreement (Wabash National Corp /De), Merger Agreement (Supreme Industries Inc)
No Solicitation. (a) Subject to Sections 5.4(bExcept as provided in Section 6.6(b) and (c) and except as permitted by this Section 5.3below, the Company agrees that from the date hereof until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) Agreement, the Company shall will not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) through any officer, director, affiliate or agent of the Company, or otherwise, solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, from any person other than Parent or that would reasonably be expected to lead to, an Acquisition Proposal, its affiliates (Ba "third party") engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish relating to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel possible acquisition of the Company or any of its Subsidiariessubsidiaries (whether by way of merger, in each case for the purpose purchase of encouraging capital stock, purchase of assets or facilitating an Acquisition Proposal 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 Agreementotherwise) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 engage in any event within twenty-four (24) hours) notify Parent sale 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 equity interest in 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 substantial assets of the Company or any of its Subsidiaries is a party, subsidiaries (other than pursuant to the extent exercise of options outstanding on the date hereof) to a third party (an "Alternative Acquisition"); nor will the Company participate in any negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any person to do or seek, any Alternative Acquisition.
(b) Notwithstanding the foregoing, in the event that (i) the Company shall receive a written proposal from a third party relating to an Alternative Acquisition (which proposal may or may not be subject to confirmatory due diligence), (ii) the Company shall have notified Parent in writing of its receipt of such proposal and (iii) the Board of Directors Directors, upon the advice of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal independent counsel, reasonably believes that the failure to do so would constitute a breach of the directors’ its fiduciary duties under Applicable Law(it being understood for this purpose that the failure to respond to an Acquisition Alternative which in the judgment of the Company's Board of Directors and its financial advisor is superior, from a financial point of view, to the Company's stockholders may be deemed to be a breach of such duty), then thereafter the Company shall be entitled to negotiate and provide information to such third party. Notwithstanding the immediately preceding sentence, this Section 6.6 will not be violated and, without more, the Company shall be permitted to negotiate and provide information to any third party that provides a written proposal for an Alternative Acquisition if such written proposal indicates that the proposed Alternative Acquisition (i) is fully financed, (ii) provides for a purchase price which will be paid entirely in cash, for all outstanding Shares and at a price per Share greater than the price per Share set forth in Section 1.1 hereof and (iii) sets forth material terms which taken as a whole are no less favorable to the Company than the terms set forth in this Agreement, and the Company shall have first notified the Parent in writing of its receipt of such proposal and the terms thereof. In addition, in the event that any such proposal, including the financing thereof, has been determined by the Board of Directors of the Company based upon the 25 written opinion of its outside financial advisors to be on terms financially superior to the Company's stockholders as compared with the Offer and the Merger (a "Bona Fide Offer"), the Company may terminate this Agreement and accept such Bona Fide Offer upon the payment to Parent of the fee provided in Section 6.4.
(c) Notwithstanding the provisions of the sixth paragraph of the Confidentiality Agreement (the "standstill provisions"), (i) following any notification to Parent of a written proposal that permits the Company to negotiate with and furnish information to any third party in accordance with Section 6.6(b) hereof, and until any Alternative Transaction resulting from such proposal shall have either been consummated or the Company shall have received written notification that any such third party shall no longer seek to engage in an Alternative Transaction with or involving the Company, the Parent shall be entitled to propose or present to the Company any offer in response to such third party's offer, and (ii) if, from the date hereof until the Effective Time or the termination of this Agreement, any third party shall announce its intention to commence, or shall commence, any tender offer to acquire Shares, Parent and the Purchaser shall be entitled to make any public announcement or proposal, or to take any other action it or they may deem appropriate, in response to such announcement or tender offer.
Appears in 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor and shall cause its Subsidiaries not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 7.10(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company permit or any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party afford access to the businessesbusiness, properties, assets assets, books, or personnel records of the Company or any of its SubsidiariesSubsidiaries to, in each case for the purpose of encouraging or facilitating an Acquisition Proposal knowingly assist, participate in, facilitate, or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal; or (Cii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, contractmerger agreement, commitment option agreement, joint venture agreement, partnership agreement, or agreement in principle other contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 7.10(a), the Company Board shall not effect 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 commercially reasonable efforts to cause any such third 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 (and confirm destruction of) all such information. The Company will be liable for any breach of this Section 7.10(a) by its Representative.
(b) Notwithstanding Section 7.10(a), prior to the receipt of the Company Shareholder Approval , the Company Board, directly or indirectly through any Representative, may, subject to Section 7.10(c) and Section 7.10(d): (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 its other professional advisors (and, if necessary, contact with such third party to clarify the terms and conditions of such Takeover Proposal), 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 Acquisition Proposal executed confidentiality agreement; (other than an Acceptable Confidentiality Agreementiii) or enter into following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; and (iv) take any agreement, contract or commitment requiring action that any court of competent jurisdiction orders the Company to abandontake (which order remains unstayed). Nothing contained herein shall (i) 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; (ii) making any “stop, terminate look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act or fail (iii) making any disclosures to consummate the stockholders of the Company with regard to the transactions contemplated by this Agreement or any Takeover Proposal required by Law.
(c) The Company shall notify Parent promptly (but in no event later than 48 hours) after receipt by the Company (or any of its Representatives) of any Takeover Proposal, any inquiry that could reasonably be expected to lead to a Takeover Proposal, any 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 such notice, the Company 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 reasonably informed of material developments affecting the status and material terms of any such Takeover Proposal, indication or request. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s and any of its Subsidiary’s business, present or future performance, financial condition, or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as expressly permitted by this Section 7.10, the Company Board shall not effect a 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 Shareholder Approval, the Company Board may effect 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 two (2) Business Days (the “Superior Proposal 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 effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; and
(ii) the Company includes in such notice a description in reasonable detail of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and terminate conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments; and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its other professional advisors, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any existing discussions or negotiations with any Third Party theretofore conducted adjustments made by Parent during the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSuperior Proposal Notice Period in the terms and conditions of this Agreement.
(be) Notwithstanding anything to the contrary contained in the foregoing, the Company Board may effect a Company Adverse Recommendation Change, after the date of this Agreement, if, at any time Agreement but prior to the Acceptance Timereceipt of the Company Shareholder Approval, if: (i) prior to effecting the Company receives a written Acquisition Proposal from a Third PartyAdverse Recommendation Change, (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation consulting with outside legal counsel and its other professional advisors, that the failure to take the actions referred effect such Company Adverse Recommendation Change, would be reasonably likely to result in clause (A) or (B) below would constitute a breach violation of its fiduciary duties to the shareholders of the Company under Applicable 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 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 Company Board shall notify Parent, in writing, at least five (5) Business Days before taking such action of its intention to take such action and a reasonable description of the Third Party making event or circumstances giving rise to its determination and (iii) at the end of such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developmentsnotice period, 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 (Board takes into account any amendment or its Representatives) within twenty four (24) hours after receipt thereof (except modification to the extent expressly prohibited this Agreement proposed 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 Parent and determines in good faith, after consultation consulting with the Company Financial Advisor and outside legal counselcounsel and its other professional advisors, that the failure to do so would constitute effect such Company Adverse Recommendation Change, would, nevertheless, be reasonably likely to result in a breach violation of the directors’ its fiduciary duties under Applicable applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Jet.AI Inc.), Agreement and Plan of Merger and Reorganization (Jet.AI Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) Neither the Company shall notnor any of its Subsidiaries shall, nor shall the Company or any Subsidiary authorize or permit any of its Subsidiaries toor their officers, nor shall the Company authorize any of its Representatives directors, employees, investment bankers, attorneys, accountants, consultants or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose other agents or advisors to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate initiate or knowingly take any action to encourage the submission of any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Alternative Proposal, (Bii) engage in, continue enter into or otherwise participate in any discussions or negotiations with with, furnish any Third Party regarding an Acquisition Proposal, non-public information relating to the Company or furnish to any Third Party information Subsidiaries or provide to any Third Party afford access to the businessesbusiness, properties, assets assets, books or personnel records of the Company or the Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, or encourage any effort by any party that is seeking to make, or has made, an Alternative Proposal or (iii) 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, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSubsidiary.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any party that, subject to the Company's compliance with Section 5.5(a), has made a Superior Proposal (as defined below) or, (ii) furnish to such party that has made a Superior Proposal nonpublic information relating to the Company or any committee thereof determines its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to Company than those contained in good faiththe Confidentiality Agreement dated as of August 13, after consultation with 2001 between the Company Financial Advisor and outside legal counselWarburg, that (iii) following receipt of such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, take and disclose to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise recommend the Superior Proposal and make disclosure to them, and/or (iv) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, 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 it must take such action to comply with its fiduciary duties under applicable law.
(c) The Board of Directors of the failure to Company shall not take any of the actions referred to in clause clauses (Ai) or through (Biii) below would constitute a breach of its fiduciary duties to the shareholders of the Company under Applicable Law, then preceding subsection unless the Company may (A) furnish information shall have delivered to Warburg a prior written notice advising Warburg that it intends to take such action, and data with respect to the Company and its Subsidiaries shall continue to the Third Party making advise Warburg after taking such Acquisition Proposal and afford such Third Party access to the businessesaction. In addition, properties, assets and personnel of the Company and its Subsidiaries and shall notify Warburg promptly (Bbut in no event later than 24 hours) 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 after receipt by the Company (1or any of its advisors) will notof any unsolicited inquiry or Alternative Proposal, and will not permit its Subsidiaries of any indication that a third party is considering making an Alternative Proposal or its or their Representatives to, furnish of any non-public request for information except pursuant relating to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries or for access provided to such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this Agreementbusiness, the Company and its Representatives may (without any determination by the Board of Directors properties, assets, books or records of the Company or its Subsidiaries by 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 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 constitutesmay be considering making, or could reasonably be expected to lead tohas made, 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 an Alternative Proposal. The Company shall thereafter provide such notice orally and in writing and shall identify the party making, and the terms and conditions of, any such Alternative Proposal, indication or request. The Company shall keep Parent reasonably informed Warburg fully informed, on a reasonably current basis basis, of the status and material details of any material developments, discussions or negotiations regarding any such Acquisition Alternative Proposal, indication or request. In addition to the foregoing, the Company shall (i) provide Warburg with at least 48 hours prior notice (or such lesser notice as provided to the members of the Company's Board of Directors but in no event less than eight hours) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Proposal and (ii) provide Warburg with at least three business days prior written notice of a meeting of the material Company's Board of Directors at which the Company's Board of Directors is reasonably expected to recommend a Superior Proposal to its stockholders and together with such notice a description of the terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto)relating to such Superior Proposal. The Company shall, including by providing a copy of material documentation relating thereto that is exchanged between the Third Party (or and shall cause its Representatives) making such Acquisition Proposal Subsidiaries 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 fromadvisors, or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any employees and other agents of the Company or and any of its Subsidiaries is a partyto, other than cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any party conducted prior to the extent date hereof with respect to any Alternative Proposal and shall use its best efforts, consistent with its rights under confidentiality agreements with such parties, to cause any such party (or its agents or advisors) in possession of confidential information about the Board of Directors Company that was furnished by or on behalf of the Company to return or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawdestroy all such information.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Warburg Pincus Private Equity Viii L P), Preferred Stock Purchase Agreement (Evolve Software Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by otherwise provided in this Section 5.36.5, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company GFI shall not, nor shall the Company it authorize or permit any of its the GFI Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s and its Subsidiaries’ respective Representatives to, and the Company shall not publicly propose to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter 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, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) or (iii) other than with respect to Parent and Purchaser)CME, (A) solicitMerger Sub 1, initiate, facilitate Merger Sub 2 or knowingly encourage any inquiries, proposals their respective Representatives or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage inother than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party Person any information or provide to data in connection with or relating to, any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company Takeover Proposal. GFI shall, and GFI shall cause its the GFI Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ and their respective Representatives to, immediately cease and terminate cause to be terminated any existing activities, discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries Persons or their respective Representatives conducted prior to the date of this Agreement with respect to an Acquisition Proposalany 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.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, if, at any time prior to receipt of the Acceptance TimeGFI Stockholder Approval, GFI and the Board of Directors of GFI (iupon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal that was first received after the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal date hereof and did not otherwise result from a breach of this Section 5.3 6.5, and subject to compliance with Section 6.5(d) (except for 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 immaterial breach of provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 5.3 by 6.5 (No Solicitation) and (C) need not contain a Representative 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 Company who time it is not an officer provided to such Person; and
(ii) participate in discussions or director of the Company)negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, (iii) in each case, that the Board of Directors of GFI (upon the Company or any committee thereof recommendation of the Special Committee) determines in good faith, faith (after consultation with the Company Financial Advisor and its outside legal counsel, counsel and its independent financial advisor) that such Acquisition Takeover Proposal constitutesis or could reasonably be expected to lead to a 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, a Superior any Takeover Proposal, and (iv) the Board of Directors of the Company determines in good faith any case within 24 hours 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 of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt thereof, GFI shall provide oral and written notice to CME 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 such Takeover Proposal (oror inquiry, if oral, the material terms and conditions of such Acquisition Proposal) and (ii) the identity of the Third Party Person 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, Takeover Proposal or inquiry and (iii) the material terms and conditions thereof of any such Takeover Proposal or inquiry (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation relating thereto 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 it is exchanged between the Third Party prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), (A) once, and not more than once, each day at mutually reasonably agreeable times, GFI (or its Representativesoutside legal counsel) making shall, in person or by telephone, provide CME (or its outside legal counsel) a summary of the status of such Acquisition Takeover Proposal and the Company material resolved or unresolved issues (including the stated positions of the parties to such negotiations on such issues) 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) within twenty four (24) hours after receipt thereof (except to , on the extent expressly prohibited by a confidentiality agreement in place as one hand, and the person making such Takeover Proposal or any of its Representatives, on the date hereof)other hand.
(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 Neither the Board of Directors of the Company or 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 Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a 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, faith (after consultation with the Company Financial Advisor and its outside legal counsel, counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the 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 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 breach Superior Proposal or obviates the need for a Change in Recommendation as a result of the directors’ 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 its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under Applicable applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 6.5(d) (Change in Recommendation), effect a Change in Recommendation.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
No Solicitation. The Stockholder (ain the Stockholder’s capacity as such) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor and shall the Company not authorize or permit any of its Subsidiaries tocontrolled affiliates, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toinvestment banker, and attorney or other advisor or representative retained by the Company shall not publicly propose Stockholder (collectively, “Representatives”) to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate knowingly facilitate, engage in any discussions, investigations or negotiations with respect to, or knowingly encourage the submission of, any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (Bii) engage in, continue or otherwise participate in disclose any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish non-public information relating to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 businessesbusiness, properties, assets and personnel of the Company and its Subsidiaries and (B) enter intoassets, maintain and participate in discussions books 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 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 records of the Company or any of its Subsidiaries to any third party that has informed the Company that it is a partyseeking to make, or has made, an Acquisition Proposal or take any other than action intended to assist or facilitate any inquiries or the extent the Board making of Directors any proposal that constitutes or could lead to an Acquisition Proposal, or (iii) consent to or vote in favor of any action to approve any transaction under or any third party becoming an “interested stockholder” under Chapter 110F of the Company Massachusetts Laws, 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. The Stockholder shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Stockholder acknowledges and hereby agrees that any violation of the restrictions set forth in this Section 11 by the Stockholder or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure of its Representatives shall be deemed to do so would constitute be a breach of this Section 11 by the directors’ fiduciary duties under Applicable LawStockholder. The Stockholder shall not enter into any letter of intent or similar document or any agreement contemplating or otherwise relating to an Acquisition Proposal unless and until this Agreement is terminated pursuant to its terms.
Appears in 2 contracts
Sources: Tender and Voting Agreement (Cognos Inc), Tender and Voting Agreement (Cognos Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3The Company agrees that neither it, until the earlier to occur nor any Subsidiary of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall notCompany, nor shall the Company permit any of its or its Subsidiaries toofficers and directors, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toshall, and the Company that it shall instruct and use its reasonable best efforts to cause its and their other respective Representatives not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, encourage, knowingly facilitate or knowingly encourage induce any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle inquiry with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior or the making, submission or announcement of, any Company Alternative Proposal, and (ivii) 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 any discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate inregarding, or facilitatefurnish to any person any nonpublic information relating or with respect to, 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 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 constitutesAlternative Proposal, or in response to any inquiries or proposals that could reasonably be expected to lead toto any Company Alternative Proposal, (iii) engage in discussions or negotiations with any person with respect to any Company Alternative Proposal, (iv) approve, endorse or recommend any Company Alternative Proposal, or (v) enter into any letter of intent or similar document or any agreement or commitment providing for, any Company Alternative Proposal (except for confidentiality agreements specifically permitted pursuant to Section 5.3(c); provided that none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made a Superior written Company Alternative Proposal and/or to solely request the clarification of the terms and conditions thereof; provided, further, that a copy of any such written clarification shall be provided to Parent no less than one (y1) direct any Persons business day prior to this Agreement, including the specific provisions sending to such person or group of this Section 5.3.
(c) From and after the date hereofpersons. The Company shall immediately terminate, and except shall cause its Subsidiaries and its and their Representatives to the extent expressly prohibited by a confidentiality agreement in place immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereofhereof with any third party with respect to a Company Alternative Proposal and shall immediately request the return of all related information.
(b) Promptly after receipt of any inquiries, the proposals or offers related to, or if any information is requested with respect to, or any negotiations or discussions are sought in connection with a Company shall as promptly as practicable Alternative Proposal (and but in any event within twenty-four (24) hours) ), the Company shall notify Parent of any Acquisition Proposalsuch, 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 person or group of persons involved, and shall thereafter provide copies of any written materials related thereto, and shall keep Parent reasonably informed on a reasonably current basis of with respect to the status of any material developmentsstatus, terms, discussions and negotiations with respect to such inquiry, proposal or negotiations regarding offer or 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).
(dc) The Company agrees not Notwithstanding anything in this Agreement to release or permit the release of any Person fromcontrary, or if prior to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any receipt of the Company Stockholder Approval (i) the Company receives a Company Alternative Proposal which (x) constitutes a Company Superior Proposal or any of its Subsidiaries is a party, other than to the extent (y) which the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its outside financial and legal advisors, would reasonably be expected to result in a Company Superior Proposal by the person (or group of persons) making such Company Financial Advisor Alternative Proposal and (ii) prior to taking the actions in (A) and (B) below, the Board of Directors determines in good faith, after consultation with its outside legal counseladvisors, that failure to do so take such action would constitute a breach of the be inconsistent with such directors’ fiduciary duties under Applicable applicable Law, then, prior to receipt of the Company Stockholder Approval, the Company may take the following actions: (A) furnish (or cause to be furnished by its Representatives) nonpublic information to the persons (or group of persons) making such Company Alternative Proposal and its Representatives and financing sources, if, and only if, prior to so furnishing such information, the Company receives from the persons (or group of persons) and its Representatives and financing sources an executed confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company and its Subsidiaries than the Confidentiality Agreement and (B) engage in discussions or negotiations with the persons (or group of persons) and its Representatives with respect to the Company Alternative Proposal.
(d) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or issuing any “stop-look-and-listen” communication, if, in the good faith judgment of the Company’s Board of Directors, after consultation with its outside legal advisors, such disclosure is required under applicable Law; provided that, (i) such disclosure shall be made at the latest time permissible under applicable Law and (ii) if such disclosure has the substantive effect of a Company Change of Recommendation (an “Effective Change of Recommendation”) (it being understood that, so long as the Company continues affirmatively to recommend to its stockholders the adoption of this Agreement and the transactions contemplated hereunder, it shall not be precluded from disclosing factually accurate information with respect to any Company Alternative Proposal or the operation of this Agreement with respect thereto), it shall be deemed a Company Change of Recommendation; provided that Parent shall not have the right to terminate pursuant to Section 7.1(c) in respect of any Effective Change of Recommendation.
(e) As used in this Agreement, “Company Alternative Proposal” shall mean any proposal or offer made by any person or group of persons prior to the receipt of the Company Stockholder Approval (other than a proposal or offer by Parent, any of its Subsidiaries or its or their affiliates or associates) relating to any (i) acquisition of the Company by merger or business combination transaction, or for a “merger of equals” with the Company; (ii) acquisition by any person of twenty-five percent (25%) or more of the assets of the Company and its Subsidiaries, taken as a whole; (iii) acquisition by any person of twenty-five percent (25%) or more of the outstanding shares of Company Common Stock; (iv) acquisition by the Company following which the stockholders of the Company immediately preceding the consummation of the transaction contemplated thereby cease to hold at least seventy-five percent (75%) of the outstanding equity of the Company immediately following such transaction or (v) any disposition of all or substantially all of the Company’s and its Subsidiaries’ assets in Puerto Rico.
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Centennial Communications Corp /De)
No Solicitation. (a) Subject During the period beginning on the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 9.1, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to Sections 5.4(b) and (c) and except as permitted be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 5.37.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Acceptance Effective Time or and the termination of this Agreement pursuant to Section 8.1:
(i) Termination Date, the Company and its Subsidiaries shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its and their respective Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly indirectly, (other than with respect to Parent and Purchaseri) solicit (including by way of furnishing non-public information), (A) solicit, initiate, facilitate initiate or knowingly encourage or facilitate any inquiries, proposals or offers that constituteinquiry with respect to, or the making, submission or announcement of, any proposal or offer that would constitutes, or is reasonably be expected to lead to, an Acquisition Alternative Proposal, (Bii) furnish to any Person (other than Parent or Merger Sub or their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Sub or their respective designees), in any such case relating to an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal with any Third Party regarding an Acquisition ProposalPerson, except to notify such Person as to the existence and content of the provisions of this Section 7.7, or furnish (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to any Third Party information communicate an Alternative Proposal to Company Board), or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalanti-takeover laws.
(b) Notwithstanding anything to the contrary contained set forth in this Section 7.7 or elsewhere in this Agreement, ifuntil this Agreement shall have been approved by the Company Required Vote, the Company may, directly or indirectly through one or more Affiliates or Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company and/or its Subsidiaries to, and/or afford access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries to, a Person or group of Persons that makes a bona fide Alternative Proposal (under circumstances in which the Company has complied with its non-solicitation obligations under Section 7.7(a)); provided, however, that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to Parent or Merger Sub or their respective Representatives (which requirement may be satisfied by posting such information in the online data room established by the Company prior to the date hereof); and provided further that, prior to initiating any such action, the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Alternative Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; and provided further that prior to furnishing such information or access to, or entering into substantive discussions (except as to the existence of this Section 7.7) or negotiations with, such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement and (B) the Company notifies Parent to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, such Person(s). In addition to the obligations of the Company and the Subsidiaries of the Company set forth in clause (b) of this Section 7.7, the Company shall promptly notify Parent in writing of any Alternative Proposal made after the date of this Agreement, which notice shall specify the material terms and conditions of any such Alternative Proposal and the identity of the Person(s) making such Alternative Proposal. The Company agrees that neither the Company nor any of the Company’s Subsidiaries will enter into any confidentiality agreement with any Person subsequent to the date hereof that prohibits the Company from providing such information to Parent.
(c) Except as provided by Section 7.7(d), at any time after the execution of this Agreement, the Company Board shall not:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Parent and Merger Sub (a “Company Recommendation Change”);
(ii) approve or recommend any Alternative Proposal; or
(iii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)) or authorize, approve or publicly recommend an Alternative Proposal or any agreement, understanding or arrangement relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)).
(d) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to the Acceptance Timetime that the this Agreement shall have been approved by the Company Required Vote the Company is then in receipt of a bona fide written Alternative Proposal from any Person that is not withdrawn and that the Company Board concludes in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal or in connection with a Fiduciary Change, the Company Board may (1) effect a Company Recommendation Change, and/or (2) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend to the shareholders of the Company, any Superior Proposal and/or authorize the Company to terminate this Agreement in accordance with Section 9.1(c)(ii) to enter into or consummate an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, however, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 9.1(c)(ii) and enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal), then the Company Board may effect a Company Recommendation Change, if and only if:
(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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines shall have determined in good faith, faith (after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, ) that such Acquisition the Alternative Proposal constitutesconstitutes a Superior Proposal, or could in the case of a Fiduciary Change that failure to effect a Company Recommendation Change would reasonably be expected to lead to, constitute a breach of its fiduciary duties to the shareholders of the Company ; and
(ii) if the Company Board makes a Company Recommendation Change in connection with a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the Termination Fee in accordance with Section 9.2(a); provided, however, that (A) prior to terminating this Agreement, the Company shall give Parent at least three (3) days’ notice thereof, attaching the Alternative Proposal Agreement (or, if applicable, the most current draft thereof), which notice need only be given once with respect to any Superior Proposal, unless such Superior Proposal is modified in any material respect in which case the three day period referred to herein shall be 48 hours, and (ivB) if, within such three (3) day period (or where applicable, 48 hour period), Parent makes an offer that the Board of Directors of the Company determines in good faith is more favorable to the shareholders of the Company (other than Parent, Merger Sub and their respective Affiliates), from a financial point of view, than such Superior Proposal (taking into account, among other things, (I) the terms of such offer and (II) such legal, financial, regulatory, timing and other aspects of such offer which the Company’s Board of Directors deems relevant), and agrees in writing to all adjustments in the terms and conditions of this Agreement as are necessary to reflect such offer, the Company’s notice of termination with respect to such Superior Proposal shall be deemed to be rescinded and of no further force and effect and, if the Company or any Subsidiary of the Company has entered into a Superior Proposal Agreement, it shall promptly terminate such agreement (it being agreed that the Company will cause any Alternative Acquisition Agreement entered into prior to the expiration of such three (3) day period (or where applicable 48 hour period) to include a provision permitting such termination).
(e) The Company shall keep Parent reasonably informed regarding the matters contemplated by this Section 7.7 (including any Alternative Proposals). Without limiting the generality of foregoing, (i) the Company shall promptly notify Parent if any proposals or offers with respect to an Alternative Proposal are received by the Company or any of its Representatives indicating, in connection with such notice, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such proposals or offers (including any material amendments thereto), including any change in the Company’s intentions as previously notified, and (ii) the Company agrees that it will promptly notify Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives indicating, in connection with such notice, the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing such information to Parent.
(f) The Company Board may not make a Company Recommendation Change in connection with a Fiduciary Change unless: (i) the Company provides Parent with written information describing such Fiduciary Change in reasonable detail as soon as reasonably practicable after becoming aware of it; (ii) the Company keeps Parent reasonably informed (orally and in writing) of developments with respect to such Fiduciary Change; (iii) the Company notifies Parent in writing at least four (4) Business Days before making a Company Recommendation Change with respect to such Fiduciary Change of its intention to do so and specifies the reasons therefor; (iv) if Parent makes a written proposal during such four Business Day period to adjust the terms and conditions of this Agreement (such written proposal which shall be in a form that would create a binding contract if accepted by the Company), the Company Board, after taking into consideration the adjusted terms and conditions of this Agreement as proposed by Parent, continues to determine in good faith (after consultation with outside legal counsel counsel) that the failure to take the actions referred make such Company Recommendation Change would reasonably be expected 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 applicable law; and (v) the Company may (A) furnish information and data shall have validly terminated this Agreement in accordance with respect to Section 9.1(c)(ii), including 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 payment of the Company and its Subsidiaries and Termination Fee in accordance with Section 9.2(a).
(Bg) enter into, maintain and participate Nothing contained 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 this Agreement and (2) will promptly provide to Parent any material non-public information concerning shall prohibit 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 Board, directly or indirectly through its Representatives, from (i) taking and disclosing to its Representatives may shareholders a position contemplated by Rules 14d-9 or 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (without ii) making any determination by the Board of Directors of disclosure to its shareholders if the Company or any committee thereof or Board determines in good faith (after consultation with the Company Financial Advisor or its outside legal counsel) that the failure to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s shareholders under applicable law or would constitute a violation of applicable law. It is understood and agreed that, for purposes of this Agreement (x) following including Section 9), a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Alternative Proposal from a Third Party that did not result from a breach and the operation of this Section 5.3 (except for Agreement with respect thereto, or any immaterial breach of this Section 5.3 “stop, look and listen” communication by a Representative of the Company who is Board, shall not constitute a Company Recommendation Change or an officer approval or director of the Company), contact such Third Party solely in order recommendation with respect 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 5.3Alternative Proposal.
(ch) From and after the date hereofNeither Parent nor Merger Sub, and except to the extent expressly prohibited by a confidentiality agreement in place as nor any of the date hereoftheir respective Affiliates, the Company shall as promptly as practicable make or enter into any formal or informal arrangements or understandings (and whether or not binding) with any Person, or have any discussions or other communications with any other Person, in any event within twenty-four (24) hours) notify Parent of such case with respect to any Acquisition Proposal, which notification shall include Alternative Proposal involving the Company.
(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 As used 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Enventis Corp), Merger Agreement (Consolidated Communications Holdings, Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor and shall cause each of the Company permit any of Subsidiaries and its Subsidiaries toand their respective officers, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives todirectors, employees, agents, investment bankers, financial advisors, attorneys, accountants and the Company shall other retained representatives (each, a “Representative”) not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, encourage or facilitate or knowingly encourage any inquiries, proposals or offers that constitute(including by way of furnishing information), or that take any other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, by way of a tender offer) or similar transactions involving the Company or any of the Company Subsidiaries that, if consummated, would reasonably be expected constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to lead to, herein as an “Acquisition Proposal”), (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, Alternative Transaction or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (Ciii) enter into any letter of intentagreement regarding any Alternative Transaction or Acquisition Proposal; provided, agreementhowever, contractthat, commitment or agreement in principle with respect to an Acquisition Proposal the event that (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(iix) the Company shall, shall receive a Superior Proposal that was not solicited by it and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not otherwise result from a breach of this Section 5.3 Agreement, (except for any immaterial breach of this Section 5.3 by a Representative y) prior to receipt of the Company who is not an officer or director of the Company)Shareholder Approval, (iii) the Board of Directors of the Company or any committee thereof Board determines in its good faithfaith judgment, after consultation with receiving the Company Financial Advisor and advice of outside legal counsel, that that, in light of such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of if the Company determines fails to participate in good faith after consultation with outside legal counsel that such discussions or negotiations with, or provide such information to, the failure to take party making the actions referred to Superior Proposal, the Company Board would be in clause (A) or (B) below would constitute a breach violation of its fiduciary duties to the shareholders of under applicable Law, and (z) the Company under Applicable Lawhas given HEOP at least five (5) Business Days’ notice of its intention to do so, then the Company may (A) furnish information and data with respect to it and the Company and its Subsidiaries to the Third Party party making such Acquisition Superior Proposal and afford such Third Party access pursuant to a customary confidentiality agreement containing terms no less restrictive to the businessesparty making the Superior Proposal than the terms contained in the Confidentiality Agreement; provided that a copy of all such written information is simultaneously provided to HEOP, 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 Superior Proposal.
(b) The Company shall notify HEOP promptly (but in no event later than one Business Day) after receipt of any Acquisition Proposal or otherwise cooperate with any material modification of or assist or participate inmaterial amendment to any Acquisition Proposal, 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 request for non-public information except pursuant relating to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning the Company or its any of the Company Subsidiaries or for access provided to such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this Agreementproperties, the Company and its Representatives may (without any determination by the Board of Directors books or records of the Company or any committee thereof or consultation with of the Company Financial Advisor Subsidiaries by any Person that has made, or outside legal counsel) (x) following to the receipt Company’s Knowledge may be considering making, an Acquisition Proposal. Such notice to HEOP shall be made orally and in writing, and shall indicate the identity of the Person making the Acquisition Proposal or intending to make or considering making 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 or requesting non-public information or access to the books and records of the Company who is not an officer or director any of the Company)Company Subsidiaries, 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 any such Acquisition Proposal constitutesor modification or amendment to an Acquisition Proposal. The Company shall keep HEOP fully informed, on a current basis, of any changes in the status and any changes or could reasonably be expected to lead tomodifications in the terms of any such Acquisition Proposal, a Superior Proposal and/or (y) direct any Persons to this Agreement, including the specific provisions of this Section 5.3indication or request.
(c) From The Company and after the date hereofCompany Subsidiaries shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than HEOP) conducted heretofore with respect to any of the foregoing. The Company agrees not to, and except to cause the extent expressly prohibited by Company Subsidiaries not to, release any third party from, and agrees to enforce, the confidentiality and standstill provisions of any agreement to which the Company or the Company Subsidiaries is a confidentiality agreement party that remains in place effect as of the date hereof, the Company and shall as promptly as practicable (and in immediately take all steps necessary to terminate any event within twenty-four (24) hours) notify Parent of approval that may have been heretofore given under any such provisions authorizing any person to make an 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 Nothing contained in this Agreement shall prohibit the Company agrees not Board from disclosing to release its shareholders a position contemplated by Rules 14d-9 and 14e-2(a)(2)-(3) under the Exchange Act; provided, that such Rules will in no way eliminate or permit modify the release of effect that any Person fromaction pursuant to such Rules would otherwise have under this Agreement; and provided, or to waive or permit the waiver or termination of further, that any provision ofsuch disclosure (other than a “stop, any confidentiality, “standstilllook and listen” or similar agreement communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to which any be a modification of the Company or any of its Subsidiaries is Board Recommendation in a party, other than manner adverse to the extent the Board of Directors of HEOP unless the Company or any committee thereof determines in good faith, after consultation with Board expressly and concurrently reaffirms the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawBoard Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Mission Community Bancorp), Merger Agreement (Heritage Oaks Bancorp)
No Solicitation. (a) Subject to Sections 5.4(b) Section 6.3(b), unless and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement shall have been terminated by either party pursuant to Section 8.1:
(i) the Company shall notArticle VIII hereof, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose totake or cause, directly or indirectly (through representatives, agents or otherwise), any of the following actions with any party other than Parent or its designees: (i) solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any offer or proposal to acquire all or any part of its business, assets or capital stock whether by merger, consolidation, other business combination, purchase of assets, tender or exchange offer or otherwise, other than an offer or proposal with respect to a sale transaction permitted under Section 5.1 hereof (each of the foregoing, an "Acquisition Proposal"); (ii) disclose, in connection with an Acquisition Proposal, any information or 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 agreement relating to an Acquisition Proposal; or (iv) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitutethe Merger, or that would reasonably be expected to lead to, an Acquisition Proposal, (Bas otherwise required by applicable law. This Section 6.3(a) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to shall not limit the businesses, properties, assets or personnel ability of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations to sell Assets in accordance with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSection 5.1(f) hereof.
(b) Notwithstanding anything the foregoing, in response to the contrary contained in this Agreementa bona fide, ifunsolicited, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, Party (ii) such Acquisition Proposal did that does not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of 6.3), the Company who is not an officer or director of Board may, and may authorize and permit the Company)'s officers, directors, employees, financial advisors, representatives, or agents to, (i) provide such Third Party with nonpublic information, (ii) otherwise facilitate any effort or attempt by such Third Party to make such Acquisition Proposal, (iii) the Board of Directors agree to or recommend or endorse any such Acquisition Proposal with or by any Third Party, (iv) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, its approval and recommendation of the Merger and this Agreement, and (v) participate in discussions and negotiations with such Third Party relating to such Acquisition Proposal, if and only to the extent that (x) the Company or any committee thereof determines Board believes in good faith, faith (after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, ) that such Acquisition Proposal constitutesis more favorable or is likely to result in an Acquisition Proposal that is more favorable to Company Stockholders than the Merger and is made by a Person believed by the Company Board to be reasonably capable of completing such Acquisition Proposal (a "Superior Proposal"), (y) in the case of clauses (iii) and (iv) only, the Company Board, after having consulted with and considered the advice of outside counsel, has reasonably determined in good faith that the failure of the Company Board to take the actions specified in clauses (iii) or could reasonably (iv) would result in a breach of its legal duties to the Company or the Company Stockholders under applicable law and (z) the Third Party has entered into a confidentiality agreement pertaining to nonpublic information regarding the Company containing terms in the aggregate no more favorable to the Third Party than those in the Confidentiality Agreement. In the event the Company Board withdraws or modifies its approval of the Merger and this Agreement as herein provided, the Merger and this Agreement shall nevertheless be expected submitted to lead to, the Company Stockholders for their consideration and approval in accordance with Section 3-105(d) of the MGCL. For a period of not less than five Business Days after Parent's receipt of notice of a Superior Proposal, the Company shall, if requested by Parent, negotiate in good faith with Parent to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal. The Company shall not enter into any agreement implementing an Acquisition Proposal prior to the termination of this Agreement in accordance with Section 8.1.
(c) The Company shall notify Parent reasonably promptly after receipt by the Company (or any of its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the Company's properties, books or records by any person or entity that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and (iv) in writing and shall indicate in reasonable detail the Board of Directors identity of the offeror and the terms and conditions of such proposal, inquiry or contact. If the Acquisition Proposal is believed by the Company Board to be a Superior Proposal, the Company shall promptly (but in any event within one calendar day) furnish to Parent all of the terms of such proposal and copies of any proposed agreement relating thereto. The Company shall promptly (but in any event within one calendar day) advise Parent in writing of any material changes to the terms and conditions of any Acquisition Proposal.
(d) Nothing contained in this Section 6.3 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any disclosure to its stockholders if the Company Board determines in good faith after consultation with its 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 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 Financial Advisor and outside legal counsel, that failure to do so would constitute reasonably be expected to result in a breach of its statutory duties to the directors’ fiduciary duties Company or its stockholders under Applicable Lawany applicable law, provided, however, that neither the Company nor the Company Board nor any committee thereof may, except as expressly permitted by this Section 6.3 or required by Rule 14e-2 promulgated under the Exchange Act, withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Center Trust Inc), Merger Agreement (Lazard Freres Real Estate Investors LLC)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as expressly permitted by this Section 5.36.02, and subject to Section 6.03(b) and Section 6.03(c), until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.18.01:
(i) the Company shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives not to, and the Company shall instruct its and their respective Representatives not publicly propose to, directly or indirectly (other than with respect to Parent and PurchaserMerger Sub in accordance with this Section 6.02), (A) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of supplying non-public information) any Acquisition Proposal or any inquiries, proposals or offers that constitute, or that would could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition ProposalProposal or with respect to any proposals or inquiries from a Third Party relating to the making of an Acquisition Proposal (other than only informing such Persons of the provisions contained in this Section 6.02), or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case case, relating in any way to, for the purpose of encouraging or facilitating facilitating, or that could reasonably be expected to lead to, an Acquisition Proposal, in each case whether or not such Third Party submitted an Acquisition Proposal or prior to the date hereof, (C) enter into any letter of intent, merger agreement, contractacquisition agreement, commitment option agreement, joint venture agreement, partnership agreement or other agreement, Contract, commitment, arrangement, understanding or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) with respect to an Acquisition Proposal or enter into any merger agreement, contract acquisition agreement, option agreement, joint venture agreement, partnership agreement or commitment other definitive agreement requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement, (D) approve, endorse or recommend any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (E) take any action to exempt any Person (other than Parent and its Affiliates) from restrictions on “business combinations” set forth in Section 203 of the DGCL or any other “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” Applicable Law, or (F) resolve, propose or agree to do any of the foregoing; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s instruct its and its Subsidiaries’ their respective Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalProposal (including terminating access to any electronic data room), and promptly (within two Business Days after the date hereof), the Company shall request that all non-public information previously provided by or on behalf of the Company or any of its Subsidiaries to any such Third Party be promptly returned or destroyed in accordance with the applicable Acceptable Confidentiality Agreement with such Third Party, whether or not such Third Party submitted an Acquisition Proposal prior to the date hereof.
(b) Notwithstanding anything to the contrary contained in this Agreementherein, if, at any time prior to obtaining the Acceptance TimeStockholder Approval, the Company receives an Acquisition Proposal from a Third Party that did not result from a material breach of this Section 6.02, (i) the Company receives a written and its Representatives may contact such Third Party making the Acquisition Proposal from a Third Party, solely to clarify the terms and conditions thereof or to request that any Acquisition Proposal made orally be made in writing and (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 if the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines determines, in good faith, faith after consultation with the a Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could would reasonably be expected to lead toresult in, a Superior Proposal, and (iv) 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 and its Representatives 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 knowingly facilitate, any such discussions or negotiations; provided, however, that the Company (1) will shall not, and will not permit shall cause its Subsidiaries or not to and shall direct its or their Representatives not to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement or confidentiality agreement in place on the date hereof and (2) will promptly (and in any event within two Business Days) provide to Parent any material non-public information or other data or information concerning the Company or its Subsidiaries or access provided to such Third Party Party, in each case, 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 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 The Company shall as promptly as practicable (and in any event within twenty-four (24) hourstwo Business Days) notify Parent of the Company’s receipt, on or after the date hereof, 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; provided, that if the Company is specifically prohibited from disclosing the identity of any Person making an Acquisition Proposal, the Company may redact that identity and any other identifying information but shall otherwise provide all such information relating to the Acquisition Proposal (except to the extent providing such information would violate a confidentiality agreement in effect between the Company and a Third Party as of the date hereof). 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 any agreements (draft or final) or other 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 two Business Days after receipt thereof (except thereof. For the avoidance of doubt, all information provided to Parent or its Representatives pursuant to this Section 6.02 will be subject to the extent expressly prohibited by a confidentiality agreement in place as terms of the date hereof)Confidentiality Agreement.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Agreement and Plan of Merger (Alaska Communications Systems Group Inc)
No Solicitation. (a) Subject Immediately upon execution of this Agreement, the Company shall (and shall cause its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to Sections 5.4(binquiries (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 (cas 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 except as permitted by this Section 5.3, until the earlier is prohibited thereby from further responding to occur of the Acceptance Time or the such inquiries.
(b) Prior to termination of this Agreement pursuant to Section 8.1:
(i) Article VII hereof, the Company and its Subsidiaries shall 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 Subsidiaries to, nor shall the Company authorize any of its Representatives (i) initiate, solicit or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose toencourage, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) solicit, initiate, facilitate any inquiries or knowingly encourage the making of any inquiries, proposals or offers proposal that constitute, or that would reasonably be expected to lead to, constitutes an Acquisition Proposal, (Bii) except as permitted below, engage in, continue or otherwise participate in negotiations or discussions with, or furnish any discussions information or negotiations with data to, or take any Third Party regarding other action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, or (iii) except as permitted below, enter into any agreement with respect to 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 this Agreement, prior to the 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 Board, without including directors who may be considered Affiliates (as defined in Rule 405 under the 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 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 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 Board's fiduciary duties under applicable law. In the event that the Company shall receive any Acquisition Proposal, it shall promptly (and in no event later than 24 hours after receipt thereof) furnish to any Third Party Parent the identity of the recipient of the Acquisition Proposal and of the Potential Acquiror, the terms of such Acquisition Proposal, copies of all information or provide to any Third Party access requested by the Potential Acquiror, and shall further promptly inform Parent in writing as to the businessesfact such information is to be provided after compliance with the terms of the preceding sentence. Nothing contained herein shall prevent the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any disclosure to the Company's stockholders if, propertiesin the good faith judgment of the Company Board, assets after receiving advice from reputable outside legal counsel experienced in such matters (and the parties hereto agree that the law firm of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is so experienced), such disclosure is required by applicable law. Without limiting the foregoing, the Company understands and agrees that any violation of the restrictions set forth in this Section 5.6(b) by the Company or personnel any of its Subsidiaries, or by any director or officer of the Company or any of its Subsidiaries or any financial advisor, attorney or other advisor or representative of the Company or any of its Subsidiaries, in each case for the purpose of encouraging whether or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect not such person is purporting to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 act 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 behalf of the Company or any of its Subsidiaries is or otherwise, shall be deemed to be a partybreach of this Section 5.6(b) sufficient to enable Parent to terminate this Agreement pursuant to Section 7.1(d)(i) hereof.
(c) For the purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any proposal, whether in writing or otherwise, made by any person other than Parent and its Subsidiaries to acquire "beneficial ownership" (as defined under Rule 13(d) of the extent Exchange Act) of 20% or more of the Board assets of, or 20% or more of Directors the outstanding capital stock of any of the Company or any committee thereof determines in good faithits Subsidiaries pursuant to a merger, after consultation with consolidation, exchange of shares or other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawor its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Adc Telecommunications Inc), Merger Agreement (Adc Telecommunications Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by From the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Effective Time or the termination date on which this Agreement is terminated in accordance with the terms of this Agreement pursuant to Section 8.1:
(i) Agreement, the Company shall not, nor shall the Company it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of or any financial advisor, attorney or other advisor or representative (“Representatives”) of, the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose Subsidiaries to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate initiate or knowingly facilitate, induce or encourage the submission of, any inquiriesAlternative Proposal (as hereinafter defined); (ii) enter into any letter of intent or agreement in principle or any agreement providing for, proposals relating to or offers that constitutein connection with, any Alternative Proposal; (iii) approve, endorse or that would reasonably be expected to lead to, an Acquisition Proposal, recommend any Alternative Proposal or (Biv) engage inenter into, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party any information with respect to, or provide take any other action to knowingly facilitate any Third Party access to inquiries or the businessesmaking of any proposal that constitutes any Alternative Proposal. Without limiting the foregoing, properties, assets or personnel it is agreed that any violation of the restrictions set forth in this Section 4.3(a) by any of the Company or any its Subsidiaries or their respective directors, officers, employees or Representatives shall be deemed to be a breach of this Section 4.3(a) by the Company. The Company will, and will cause each of its SubsidiariesSubsidiaries and each of the directors, in each case for the purpose officers, employees and Representatives of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate cause to be terminated any and all existing activities, discussions or negotiations with any Third Party theretofore Person conducted by the Company, its Subsidiaries or their respective Representatives heretofore with respect to an Acquisition any Alternative Proposal. The Company agrees that it will take the necessary steps to promptly inform its directors, officers, employees and Representatives of the obligations undertaken in this Section 4.3.
(b) Notwithstanding anything to the contrary contained in Section 4.3(a) or elsewhere in this Agreement, if, at any time prior to in the Acceptance Time, (i) event that the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach after the date of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of Agreement and prior to obtaining the Company who is not Stockholder Approval, an officer or director of the Company)unsolicited, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, bona fide Alternative Proposal that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel that and a financial advisor of nationally recognized reputation) would be, or would be reasonably likely to lead to, a Superior Proposal, the failure Company may, in response to such Alternative Proposal, subject to compliance with this Section 4.3 and receiving from such Person an executed confidentiality agreement containing terms not materially less favorable to the Company than the terms of the Confidentiality Agreement, then take the actions referred to in clause following actions:
(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 (Ai) furnish any information and data with respect to the Company and its Subsidiaries to the Third Party Person or group (and their respective Representatives) making such Acquisition Proposal and afford Alternative Proposal; provided, that within one (1) Business Day of furnishing any such Third Party access information to the businessessuch Person or group, properties, assets and personnel of the Company and its Subsidiaries and it furnishes such information to Parent; and
(Bii) enter into, maintain and participate engage in discussions or negotiations with such Person or group (and their respective Representatives) with respect to such Alternative Proposal. The Company agrees that it and its Subsidiaries shall not enter into any confidentiality agreement with any person subsequent to 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, date of this Agreement that prohibits the Company (1) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish any non-public from providing 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 that is required to be 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 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 under 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 5.34.3.
(c) From and after the date hereof, and except In addition to the extent expressly prohibited by a confidentiality agreement in place as obligations of the date hereofCompany set forth in Sections 4.3(a), the Company shall 4.3(b) and 4.3(d), as promptly as practicable (and in any event within twenty-four one (241) hoursBusiness Day) notify Parent after receipt of any Acquisition Alternative Proposal or any request for nonpublic information or any inquiry relating in any way to, or that would reasonably be expected to lead to, any Alternative Proposal, which notification the Company shall include (i) a copy provide Parent with written notice of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Alternative Proposal) , request or inquiry (to the extent not previously provided to Parent), and (ii) the identity of the Third Party Person or group making any such Acquisition Alternative Proposal, request or inquiry and a copy of all written materials provided to it in connection with such Alternative Proposal, request or inquiry. The In addition, the Company shall thereafter provide Parent as promptly as practicable (and in any event within one (1) Business Day) with all information as is reasonably necessary to keep Parent reasonably informed on a reasonably current basis of the status of any all material developments, discussions oral or negotiations regarding any such Acquisition Proposalwritten communications regarding, and the material terms status and conditions thereof (including any change in price or form of consideration changes to the economic or other material amendment thereto)terms of, including by providing any such Alternative Proposal, request or inquiry, and shall provide, as promptly as reasonably practicable, to Parent a copy of all material documentation relating thereto that is exchanged between the Third Party written materials (including material written materials provided by email or its Representativesotherwise in electronic format) making such Acquisition Proposal and the Company (provided by or its Representatives) within twenty four (24) hours after receipt thereof (except to the extent expressly prohibited by a confidentiality agreement Company, any of its Subsidiaries or any of their Representatives in place as of the date hereof)connection with such Alternative Proposal, request or inquiry.
(d) The Neither the Board of Directors of the Company agrees not nor any committee thereof shall, directly or indirectly, (i) (A) withhold, withdraw, qualify, amend or modify (in each case, in a manner adverse to release Parent) or permit publicly propose to withhold, withdraw, qualify, amend or modify (in each case, in a manner adverse to Parent), the release approval, recommendation or declaration of advisability by such Board of Directors or any Person fromcommittee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement, or (B) recommend, adopt or approve, or publicly propose to waive recommend, adopt or permit the waiver or termination of any provision ofapprove, any confidentialityAlternative Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve, “standstill” adopt or similar agreement recommend, or publicly propose to which any of approve, adopt or recommend, or allow the Company or any of its Subsidiaries is Affiliates 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, arrangement or understanding or any tender offer (A) constituting, or relating to, any Alternative Proposal or (B) requiring it (or that would require it) to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Section 4.3(d) or in any other provision of this Agreement, the Board of Directors of the Company may, solely in response to a partySuperior Proposal made after the date of this Agreement and that did not otherwise result from a breach of this Section 4.3, terminate this Agreement pursuant to Section 7.1(f) and concurrently enter into a definitive agreement with respect to such Superior Proposal if all of the following conditions in clauses (i) through (v) are met, as applicable:
(i) such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company Stockholder Approval has not been obtained;
(iii) the Company has (A) provided to Parent three (3) Business Days’ prior written notice which shall state expressly (1) that it has received a Superior Proposal, (2) the material terms and conditions of the Superior Proposal (including the per share value of the consideration offered therein and the identity of the Person or group of Persons making the Superior Proposal), and shall have provided a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Proposal and other material documents, including the definitive agreement with respect to such Superior Proposal (the “Alternative Transaction Agreement”) (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new three (3) Business Day period) and (3) that it intends to terminate this Agreement, and the manner in which it intends to do so, and (B) prior to terminating this Agreement, to the extent requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that the transaction contemplated by the Alternative Transaction Agreement ceases to constitute a Superior Proposal;
(iv) the Company shall have complied in all material respects with this Section 4.3; and
(v) the Company pays all fees and expenses as required pursuant to Section 7.3.
(e) Notwithstanding anything to the contrary set forth in any provision of this Agreement, prior to receipt of the Company Stockholder Approval, the Board of Directors of the Company (or a committee thereof) may, other than in circumstances involving or relating to a Superior Proposal but only in response to an Intervening Event and provided that the Company and its Subsidiaries have complied in all material respects with this Section 4.3, effect a Company Adverse Recommendation Change if the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel) that, in light of such Intervening Event, failure to take such action would reasonably be expected to constitute a breach of the directors’ fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that neither the Board of Directors of the Company nor any committee thereof shall take any of the actions set forth in this Section 4.3(e) unless the Company has first complied with the provisions of Section 4.3(d)(iii), treating the occurrence of such Intervening Event as if a Superior Proposal had been received and after so complying, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, failure to make a Company Adverse Recommendation Change would constitute a breach of the directors’ fiduciary obligations to the Company’s stockholders under applicable Law.
(f) Notwithstanding anything to the contrary in Section 4.3(a), prior to the Company Stockholder Meeting, nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or publicly disclosing the existence of a Alternative Proposal to the extent the Board of Directors of the Company or any committee thereof determines in good faith, faith (after consultation with its outside counsel) that the Company Financial Advisor and outside legal counsel, that failure to do so make such disclosure would reasonably be expected to constitute a breach of the directors’ its fiduciary duties under Applicable applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Churchill Downs Inc), Merger Agreement (Youbet Com Inc)
No Solicitation. (a) Subject Other than with respect to Sections 5.4(b) and (c) and except as permitted by this Section 5.3the Transaction, until the earlier to occur each of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, Affiliated Companies and Qorus agrees that neither it nor shall the Company permit any of its Subsidiaries toofficers, nor shall the Company authorize any of its Representatives directors, managers, or any of its Subsidiary’s Representatives tomanaging members shall, and the Company that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not publicly propose to, directly or indirectly (other than indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to Parent and Purchaser)(i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, (Aii) solicitany sale, initiatelease, facilitate exchange, mortgage, pledge, transfer or knowingly encourage purchase of all or substantially all of the assets or equity securities of it, taken as a whole, in a single transaction or series of related transactions or (iii) any inquiriestender offer or exchange offer for 20% or more of the outstanding shares of Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus further agree that they and their officers, proposals or offers that constitutedirectors, managers, or managing members shall, and that would reasonably be expected they shall direct and use their reasonable best efforts to lead cause their agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, (B) engage in, continue or otherwise participate in facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any Third Party regarding parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or furnish otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any Third Party information negotiations or provide to discussions with any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (CD) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect principle, acquisition agreement or other similar agreement relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior and only to the Acceptance Time, extent that in each such case referred to in clause (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 who is not an officer or director of the CompanyB), (iiiC) the Board or (D) above, Qorus' board of Directors of the Company or any committee thereof directors determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, counsel that such Acquisition Proposal constitutes, or could reasonably be expected action is necessary to lead to, act in a Superior Proposal, manner consistent with the directors' fiduciary duties under applicable law and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel its financial advisors that the failure to take the actions referred to in clause (A) person 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 group making such Acquisition Proposal and afford such Third Party access has adequate sources of financing 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 consummate 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, and 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 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 if consummated as proposed, is materially more favorable to the material terms and conditions thereof stockholders of Qorus from a financial point of view (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 more favorable Acquisition Proposal being referred to as a "Superior 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 faithfaith that such Superior Proposal is reasonably capable of being consummated, after consultation with the Company Financial Advisor taking into account legal, financial, regulatory and outside legal counsel, that failure to do so would constitute a breach other aspects of the directors’ fiduciary duties under Applicable Lawproposal and the person making the proposal.
Appears in 2 contracts
Sources: Exchange Agreement (Qorus Com Inc), Exchange Agreement (Qorus Com Inc)
No Solicitation. (a) Subject to Sections 5.4(b) Each Stockholder will immediately cease, and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of will instruct its Representatives to immediately cease, any discussions or negotiations with any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than Person that may be ongoing with respect to Parent and Purchaser), (A) solicit, initiate, facilitate any Company Acquisition Proposal or knowingly encourage any inquiries, proposals or offers that constitute, or proposal that would reasonably be expected to lead to a Company Acquisition Proposal. Each Stockholder agrees that, from and after the date hereof and until the Voting Covenant Expiration Date, such Stockholder shall not, directly or indirectly, nor shall it authorize or permit any of its Representatives to, an Acquisition Proposaldirectly or indirectly, (B1) solicit, initiate or knowingly encourage or knowingly induce (including by way of furnishing information), or take any other action designed to knowingly facilitate, any inquiry or the making of any proposal which constitutes, or would be reasonably expected to lead to, a Company Acquisition Proposal (provided that such Stockholder and its Representatives may refer the Person making such proposal or offer to the provisions of this Section 3.3 or the provisions in Section 4.2 and Section 4.5 of the Merger Agreement) or (2) engage in, continue or otherwise participate in any discussions or negotiations with regarding any Third Party regarding an Company Acquisition Proposal, Proposal (provided that such Stockholder and its Representatives may refer the Person making such proposal or furnish to any Third Party information or provide to any Third Party access offer to the businessesprovisions of this Section 3.3 or the provisions in Section 4.2 and Section 4.5 of the Merger Agreement). Each Stockholder acknowledges and agrees that, propertiesin the event any Representative of such Stockholder (acting in its capacity as such) takes any action that if taken by such Stockholder would be a breach of this Section 3.3, assets or personnel the taking of such action by such Representative will be deemed to constitute a breach of this Agreement (including this Section 3.3) by such Stockholder. Notwithstanding anything to the contrary in this Section 3.3, each Stockholder and its Representatives may engage in such activities at such times and to the extent that the Company or any of its SubsidiariesRepresentatives is permitted to engage in such activities pursuant to the terms of the Merger Agreement, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 but only if such Stockholder and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations comply with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 terms of the Company who is not an officer or director of the Company), (iii) the Board of Directors of Merger Agreement as if it were the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 one 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 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 5.3Representatives.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Voting and Support Agreement (Bioventus Inc.), Voting and Support Agreement (Misonix Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by this Section 5.36.3, from and after the date hereof until the earlier to occur of the Acceptance Effective Time or or, if earlier, the termination of this Agreement pursuant to Section 8.1in accordance with Article VIII, none of the Company or any of its Subsidiaries shall, and the Company shall instruct its Representatives not to, directly or indirectly:
(i) initiate or solicit the Company shall not, nor shall the Company permit submission of any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers offer that constituteconstitutes, or that would reasonably be expected to lead to, an Acquisition Proposal;
(ii) furnish to any third party any non-public information relating to the Company or any of its Subsidiaries, or afford to any third party access to the books, records or other non-public information of the Company or any of the Subsidiaries of the Company, in any such case with the express intent to encourage or induce the making, submission or announcement of any offer, proposal or indication of interest that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal;
(Biii) enter into, conduct, participate, maintain or engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding third party with respect to any offer, proposal or indication of interest that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (other than solely to inform any third party of the existence of the provisions contained in this Section 6.3); provided that the Company may contact the Person that has made an offer, proposal or indication of interest solely for the sole purpose of seeking clarification of the terms or conditions of such offer, proposal or indication of interest, as applicable;
(iv) approve, adopt, declare advisable or recommend an Acquisition Proposal;
(v) withdraw, qualify, amend or modify, in any manner adverse to Parent or Merger Sub, the Company Board Recommendation;
(vi) fail to include the Company Board Recommendation in the Proxy Statement/Prospectus;
(vii) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the shareholders of the Company (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by the shareholders of the Company, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after the commencement thereof (as determined by Rule 14d-2 of the Exchange Act);
(viii) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days, if so requested by Parent, following the Company’s acknowledgement of receipt of an Acquisition Proposal;
(ix) enter into any letter of intent, memorandum of understanding, agreement in principle or other similar document, or furnish any Contract providing for any Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the Merger or hold the Extraordinary General Meeting; or
(x) resolve, propose or agree to do any of the foregoing (any action set forth in the foregoing clauses (iv), (v), (vi) or (vii) (to the extent related to the foregoing clauses (iv), (v), (vi) or (vii)), a “Change of Board Recommendation”). The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than Parent) conducted prior to or as of the date hereof by the Company or any of its Subsidiaries, and will instruct its Representatives to cease any existing activities that would reasonably be expected to lead to any Third Party information or provide Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any Third Party access to the businesses, properties, assets online or personnel other data rooms containing any material non-public information in respect of the Company or any of its Subsidiaries, in each case established for the purpose of encouraging or facilitating submitting an Acquisition Proposal 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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Proposal. The Company shall, and shall cause as soon as practicable following the date hereof, request of each Person that has executed a confidentiality agreement, on or after April 2018, in connection with its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to consideration of an Acquisition Proposal, to promptly return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its Subsidiaries.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.3(a), ifbut subject to Section 6.3(c), if at any time following the date hereof and prior to the Acceptance Time, time that the Company Shareholder Approval is obtained (i) the Company receives a bona fide written offer, inquiry, proposal, letter of intent or indication of interest, in each case with regard to an existing or forthcoming Acquisition Proposal Proposal, from a Third Party, third party that was not obtained in material violation of Section 6.3(a) and (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith faith, after consultation with the Company’s financial advisor and outside legal counsel counsel, that the failure such offer, inquiry proposal, letter of intent or indication of interest constitutes or would reasonably be expected to take the actions referred lead to in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders of the Company under Applicable LawSuperior Proposal, then the Company may in response to such Acquisition Proposal (A) furnish information information, including access to books, records, facilities and data personnel, with respect to the Company and its Subsidiaries to the Third Party third party making such Acquisition Proposal offer, inquiry, proposal, letter of intent or indication of interest, its Representatives and afford such Third Party access to the businesses, properties, assets and personnel potential sources of the Company and its Subsidiaries financing and (B) enter into, maintain and participate in discussions or negotiations with the Third Party third party making such offer, inquiry, proposal, letter of intent or indication of interest, its Representatives and potential sources of financing regarding such Acquisition Proposal, in each case, only if (1) the Company gives Parent a written notice that states that the Company has received such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate and includes all the information required by Section 6.3(c) in accordance with or assist or participate inSection 6.3(c) and thereafter continues to comply with Section 6.3(c) and Section 6.3(d), or facilitate, any such discussions or negotiations; provided, however, that the Company (12) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish prior to furnishing any non-public information except pursuant to such Person, the Company shall have entered into an Acceptable Confidentiality Agreement with such Person and (2) will promptly provide prior to Parent or substantially contemporaneously with the provision of any material non-public information concerning the Company or its the Subsidiaries or access provided of the Company to any such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this AgreementPerson, the Company provides such information to Parent (if such information has not previously been furnished to Parent or its Representatives) and its Representatives may (without any determination by 3) the Board of Directors of the Company or any committee thereof or shall have determined in good faith, after consultation with the Company Financial Advisor or Company’s outside legal counsel) (x) following , that 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 failure to take 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 action would be expected to lead to, a Superior Proposal and/or (y) direct any Persons to this Agreement, including the specific provisions of this Section 5.3inconsistent with its fiduciary duties under applicable Law.
(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 As promptly as practicable (and in any event within twenty-four (24) 24 hours) notify Parent following the receipt by the Company, any of its Subsidiaries or any of their Representatives of (i) an Acquisition Proposal or (ii) any request for information or to engage in negotiations or discussions that would reasonably be expected to lead to an Acquisition Proposal, which notification the Company shall include provide Parent notice of (iA) the receipt of such Acquisition Proposal, request or inquiry, (B) the identity of the third party making, and the material terms and conditions of, such Acquisition Proposal, request or inquiry (including the status of any financing arrangements to the extent provided to the Company, any of its Subsidiaries or any Representative of the Company) and (C) a copy of all material agreements proposed provided by such third party in connection with such Acquisition Proposal, request or inquiry. The Company shall keep Parent fully informed, on a current basis, of the applicable status and details of any such Acquisition Proposal, indication or request (including any changes thereto) and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all material written materials sent or provided to the Company or any of its Subsidiaries by or at the direction of the third party making such Acquisition Proposal that describe any material terms or conditions of any Acquisition Proposal (oras well as written summaries of any material oral communications addressing such matters).
(d) Notwithstanding anything to the contrary contained in Section 6.3(a), if oralat any time prior to the time that the Company Shareholder Approval is obtained, the Board of Directors of the Company may (i) effect a Change of Board Recommendation, subject to the requirements of this Section 6.3(d), in response to a Superior Proposal or an Intervening Event and/or (ii) terminate this Agreement as set forth in Section 8.1(d)(ii) and enter into a definitive agreement with respect to a Superior Proposal. The Company shall not be entitled to effect a Change of Board Recommendation with respect to a Superior Proposal or Intervening Event or terminate this Agreement as set forth in Section 8.1(d)(ii) pursuant to this Section 6.3(d) unless (A) the Company shall have provided to Parent at least five (5) Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice shall state expressly (1) that the Company has received a Superior Proposal or an Intervening Event has occurred, (2) in the case of a Superior Proposal, the material terms and conditions of such Acquisition ProposalSuperior Proposal (including the status of any financing arrangements to the extent provided to the Company and/or any of its Representatives) and (ii) the identity of the Third Party 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 Superior Proposal, and or, in the case of an Intervening Event, the material terms facts and conditions thereof circumstances (including any change based on information reasonably available) related to such Intervening Event, and (3) that it intends to effect a Change of Board Recommendation or terminate this Agreement as set forth 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 Section 8.1(d)(ii) and (or its RepresentativesB) 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 shall have concluded in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that the failure to do so take such action would constitute a breach of the directors’ be inconsistent with its fiduciary duties under Applicable applicable Law. During the Notice Period, if requested by Parent, the Company shall engage in good faith negotiations with Parent and its Representative regarding any amendment to this Agreement proposed in writing by Parent, and the Board of Directors of the Company shall consider in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) that, if accepted by the Company, would be binding upon Parent (the “Proposed Changed Terms”) by no later than 11:59 p.m. (Central Time), on the last day of the Notice Period. Notwithstanding anything in this Section 6.3(d) to the contrary, the Board of Directors of the Company may not effect a Change of Board Recommendation or terminate this Agreement as set forth in Section 8.1(d)(ii) until the expiration of the Notice Period and unless and until the Board of Directors of the Company concludes in good faith, after considering the Proposed Changed Terms (if any are proposed by Parent) and consultation with outside legal counsel, that the failure to take such action would still be inconsistent with its fiduciary duties under applicable Law. In the event of any material revisions or modifications to the terms of such Superior Proposal, the Company shall be required to promptly (but in any event within 24 hours) deliver a new written notice to Parent and to again comply with the requirements of this Section 6.3(d) with respect to such new written notice, except that the Notice Period shall be three (3) Business Days with respect to any such revised Superior Proposal, but no such new written notice shall shorten the original Notice Period.
(e) Nothing contained in this Section 6.3 shall prohibit the Board of Directors of the Company from (i) disclosing to the shareholders of the Company 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) making any disclosure that constitutes a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, which actions shall not constitute or be deemed to constitute a Change of Board Recommendation and Parent shall not have the right to terminate this Agreement as set forth in Section 8.3(a)(i); provided that notwithstanding the foregoing sentence, if such disclosure does not reaffirm the Company Board Recommendation or has the effect of withdrawing or adversely modifying the Company Board Recommendation, such disclosure shall be deemed a Change of Board Recommendation in accordance with the terms of this Section 6.3.
Appears in 2 contracts
Sources: Merger Agreement (Yatra Online, Inc.), Merger Agreement (Ebix Inc)
No Solicitation. (a) Subject to Sections 5.4(bThe Stockholder shall not, and the Stockholder shall cause its Affiliates (other than the Company) and (c) its and except as permitted by this Section 5.3their directors, until the earlier officers and employees not to, and shall direct and otherwise use its reasonable best efforts to occur of the Acceptance Time cause its and their respective other Representatives not to, directly or the termination of this Agreement pursuant to Section 8.1:
indirectly (i) initiate, solicit, or knowingly encourage, or knowingly facilitate the submission or making of, any Acquisition Proposal, (ii) other than informing Third Parties of the existence of the provisions contained in this Section 3.03, participate or engage in negotiations or discussions, or furnish any information concerning the Company shall not, nor shall the Company permit or any of its Subsidiaries to, nor shall any Third Party relating to any Acquisition Proposal or Acquisition Transaction, (iii) enter into any Contract or other agreement (binding or non-binding, preliminary or definitive) for any Acquisition Proposal or Acquisition Transaction, (iv) enter into any Contract or other agreement to reimburse any Third Party for costs, expenses or other Liabilities incurred in connection with the Company authorize making (or evaluating for the purpose of making) a potential Acquisition Proposal or Acquisition Transaction or (v) enter into any agreement that would prevent the Stockholder from complying with any provision of its Representatives or any this Section 3.03. From and after the execution and delivery of its Subsidiary’s Representatives tothis Agreement, the Stockholder shall, and the Company shall not publicly propose to, directly or indirectly cause its Affiliates and shall direct its and their respective Representatives (other than with respect the Company but only to Parent and Purchaser), (Athe extent expressly permitted by the Merger Agreement) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any immediately cease and cause to be terminated all discussions or negotiations with any Third Party regarding an Person existing on the date hereof with respect to such Person making (or evaluating for the purpose of making) any Acquisition ProposalProposal or Acquisition Transaction. The Stockholder shall ensure that its Representatives are aware of the provisions of this Section 3.03, and it is agreed that any violation of the restrictions applicable to Representatives set forth in this Section 3.03 by any Representative of the Stockholder or furnish to any Third Party information or provide to of its Affiliates shall constitute a breach of this Section 3.03.
(b) From and after the execution and delivery of this Agreement, the Stockholder shall promptly (and in any Third Party access event within one (1) Business Day following the time of receipt) advise Parent in writing in the event that, prior to the businessesAlternative Transaction End Time, properties, assets or personnel of the Company it or any of its Subsidiaries, in each case for any of its or its Subsidiaries’ officers, directors or employees or, to the purpose Stockholder’s knowledge, any of encouraging its or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate receives any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an bona fide Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation connection 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 Lawsuch notice, 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 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) including 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, copies of any documentation and a written summary of any oral proposals) of any such Acquisition Proposal; provided that the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing Stockholder’s obligation pursuant to this Section 3.03(b) shall be satisfied if the Company provides a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making notification with respect to such Acquisition Proposal pursuant to the terms of the Merger Agreement.
(c) Notwithstanding anything to the contrary in this Section 3.03, solely to the extent the Company is permitted under the terms of Section 6.04 of the Merger Agreement to, and the Company Board has determined to, engage in negotiations or discussions with, otherwise contact, or furnish any confidential information and reasonable access to, any Third Party making any Acquisition Proposal, the Stockholder and its Representatives may, at the request of the Company Board, (i) participate in a due diligence process with any Third Party with respect to any Acquisition Proposal or its Representatives) within twenty four (24) hours after receipt thereof (except Acquisition Transaction, to the extent expressly prohibited reasonably necessary to enable such Third Party to conduct due diligence and (ii) provide information to, and participate in discussions with, such Third Party relating to any such Acquisition Proposal or Acquisition Transaction, provided that such action by a confidentiality agreement in place as the Stockholder and its Representatives would be permitted to be taken by the Company pursuant to the terms of the date hereof)Merger Agreement.
(d) The For purposes of this Section 3.03, any officer, director, employee, agent or advisor of the Company agrees (in each case, solely in their capacities as such) will be deemed not to release or permit be a Representative of the release Stockholder. For the avoidance of doubt, (i) nothing in this Section 3.03 shall affect in any way the obligations of any Person from(including the Company and its Representatives) under the Merger Agreement, and (ii) the Company is not a Representative or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any Affiliate 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawStockholder.
Appears in 2 contracts
Sources: Support Agreement (General Mills Inc), Support Agreement (Blue Buffalo Pet Products, Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by this Section 5.3after the date hereof, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall will not, nor shall and will not authorize or (to the Company extent within its control) permit any of its Subsidiaries toofficers, nor shall the Company authorize directors, employees, agents, affiliates and other representatives or those of any of its Representatives or any of its Subsidiary’s Representatives toSubsidiaries (collectively, and the "Company shall not publicly propose Representatives") to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicitindirectly, initiate, facilitate encourage or knowingly encourage solicit (including by way of providing information) any prospective acquiror or the invitation or submission of any inquiries, proposals or offers or any other efforts or attempts that constitute, or that would may reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 Agreementas hereinafter defined) from any Person or enter into engage in any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 thereto or otherwise cooperate with or assist or participate in, or facilitate, facilitate any such discussions or negotiationsproposal; providedPROVIDED, howeverHOWEVER, that that, notwithstanding any other provision of this Agreement, (i) the Company's Board of Directors may take and disclose to the stockholders of the Company (1a position contemplated by Rules 14d-9 and 14e-2(a) 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 promulgated under the Exchange Act and (2ii) will promptly provide to Parent following receipt from a third party, without any material non-public information concerning solicitation, encouragement or initiation, directly or indirectly, by 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 Agreementany Company Representative, of a bona fide Company Acquisition Proposal, (x) the Company may engage in discussions or negotiations with such third party and may furnish such third party information concerning it, and its Representatives may business, properties and assets if such third party executes a confidentiality agreement in reasonably customary form and (without any determination by y) the Board of Directors of the Company may withdraw, modify or any committee thereof not make its recommendation referred to in Section 5.11(b) or consultation terminate this Agreement in accordance with Article 7, but in each case referred to in the Company Financial Advisor or outside legal counselforegoing clauses (i) and (x) following ii), only to the receipt extent that the Company's Board 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 Directors shall conclude in good faith based on the Company who is not an officer or director advice of the Company), contact 's outside counsel that such Third Party solely action is necessary in order for the Company's Board of Directors to clarify act in a manner that is consistent with its fiduciary duties under applicable Law.
(b) The Company shall immediately cease and understand cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by the terms and conditions of an Company or any Company Representatives with respect to any Company 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 existing on the specific provisions of this Section 5.3date hereof.
(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 The Company shall as will promptly as practicable (and in any event within twenty-four (24) 24 hours) notify Parent of any Acquisition Proposal, which notification shall include (i) a copy of communicate to Newco the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such any Company Acquisition Proposal) Proposal that it may receive and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter will keep Parent Newco informed, as promptly as reasonably informed on a reasonably current basis of practicable, as to the status of any material developmentsactions, discussions or negotiations regarding including any discussions, taken pursuant to such Company 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 As used in this Agreement, "Company agrees not to release Acquisition Proposal" means any inquiry, proposal or permit the release of offer from any Person fromrelating to any direct or indirect acquisition or purchase of a business that constitutes one-third or more of the net revenues, net income or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any assets of the Company and its Subsidiaries, taken as a whole, or one-third or more of the outstanding Company Common Stock, any tender offer or exchange offer that if consummated would result in any Person beneficially owning one-third or more of the outstanding Company Common Stock, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company (or any Subsidiary or Subsidiaries whose business constitutes one-third or more of the net revenues, net income or assets of the Company and its Subsidiaries is taken as a partywhole), 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawtransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Concentra Managed Care Inc), Merger Agreement (Concentra Managed Care Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by otherwise provided in this Section 5.36.5, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company GFI shall not, nor shall the Company it authorize or permit any of its the GFI Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s and its Subsidiaries' respective Representatives to, and the Company shall not publicly propose to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter 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, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) or (iii) other than with respect to Parent and Purchaser)CME, (A) solicitMerger Sub 1, initiate, facilitate Merger Sub 2 or knowingly encourage any inquiries, proposals their respective Representatives or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage inother than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party Person any information or provide to data in connection with or relating to, any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company Takeover Proposal. GFI shall, and GFI shall cause its the GFI Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ and their respective Representatives to, immediately cease and terminate cause to be terminated any existing activities, discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries Persons or their respective Representatives conducted prior to the date of this Agreement with respect to an Acquisition Proposalany 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.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, if, at any time prior to receipt of the Acceptance TimeGFI Stockholder Approval, GFI and the Board of Directors of GFI (iupon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal that was first received after the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal date hereof and did not otherwise result from a breach of this Section 5.3 6.5, and subject to compliance with Section 6.5(d) (except for 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 immaterial breach of provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 5.3 by 6.5 (No Solicitation) and (C) need not contain a Representative 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 Company who time it is not an officer provided to such Person; and
(ii) participate in discussions or director of the Company)negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, (iii) in each case, that the Board of Directors of GFI (upon the Company or any committee thereof recommendation of the Special Committee) determines in good faith, faith (after consultation with the Company Financial Advisor and its outside legal counsel, counsel and its independent financial advisor) that such Acquisition Takeover Proposal constitutesis or could reasonably be expected to lead to a 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, a Superior any Takeover Proposal, and (iv) the Board of Directors of the Company determines in good faith any case within 24 hours 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 of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt thereof, GFI shall provide oral and written notice to CME 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 such Takeover Proposal (oror inquiry, if oral, the material terms and conditions of such Acquisition Proposal) and (ii) the identity of the Third Party Person 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, Takeover Proposal or inquiry and (iii) the material terms and conditions thereof of any such Takeover Proposal or inquiry (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation relating thereto 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 it is exchanged between the Third Party prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), (A) once, and not more than once, each day at mutually reasonably agreeable times, GFI (or its Representativesoutside legal counsel) making shall, in person or by telephone, provide CME (or its outside legal counsel) a summary of the status of such Acquisition Takeover Proposal and the Company material resolved or unresolved issues (including the stated positions of the parties to such negotiations on such issues) 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) within twenty four (24) hours after receipt thereof (except to , on the extent expressly prohibited by a confidentiality agreement in place as one hand, and the person making such Takeover Proposal or any of its Representatives, on the date hereof)other hand.
(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 Neither the Board of Directors of the Company or 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 Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a 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, faith (after consultation with the Company Financial Advisor and its outside legal counsel, counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the 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 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 breach Superior Proposal or obviates the need for a Change in Recommendation as a result of the directors’ 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 its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under Applicable applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 6.5(d) (Change in Recommendation), effect a Change in Recommendation.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until From the earlier to occur of the Acceptance Time or the termination date of this Agreement pursuant to until the Effective Time, except as specifically permitted in Section 8.15.4(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 knowingly encourage (including by way of providing information) or knowingly 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 shall not, nor shall the Company permit or any of its Subsidiaries to, nor shall or otherwise knowingly cooperate with or knowingly assist any Person in connection with a Takeover Proposal;
(iii) withdraw, modify or amend the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate Board Recommendation in any discussions manner adverse to MergerCo;
(iv) approve, endorse or negotiations with recommend any Third Party regarding an Acquisition Takeover Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or ;
(Cv) enter into any letter of intent, agreement in principle, merger agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any acquisition agreement, contract option agreement or commitment requiring the Company other similar agreement relating to abandon, terminate or fail to consummate the transactions contemplated by this Agreementa Takeover Proposal; andor
(iivi) resolve, propose or agree to do any of the foregoing.
(b) The Company shall, and shall cause each of its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease any solicitations, discussions or negotiations existing on the date of this Agreement with any Person (other than the parties hereto) that has made or indicated an intention to make a Takeover Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.4.
(c) The Company shall notify MergerCo promptly (and terminate in any existing event within 24 hours) upon receipt by it or its Subsidiaries or Representatives of (i) any Takeover Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to 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 within 24 hours) with the identity of such Person and a copy of such Takeover Proposal, indication, inquiry or request (or, where no such copy is available, a description of the material terms and conditions of such Takeover Proposal, indication, inquiry or request), including any material modifications thereto. The Company shall keep MergerCo reasonably informed on a current basis (and in any event within 24 hours of the occurrence of any changes, developments, discussions or negotiations) of the status of any such 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 foregoing, the Company shall promptly (and in any event within 24 hours) notify 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 of its Subsidiaries is party to any agreement, 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 negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained a Person who has made a written Takeover Proposal not solicited in violation of this Agreement, Section 5.4 if, at any time prior to the Acceptance Timetaking such action, (iA) the Company receives a written Acquisition Proposal from a Third Party, enters into an Acceptable Confidentiality Agreement with such Person and (iiB) 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 who is not an officer or director of Board (acting through the Company)Special Committee, (iiiif then in existence) the Board of Directors of the Company or any committee thereof determines in good faith, faith (1) after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, that such Acquisition Takeover Proposal constitutes, or could reasonably be expected to lead toresult in, a Superior Proposal, Proposal and (iv2) the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel counsel, that the failure to take the actions referred to in clause (A) or (B) below would constitute a breach of such action could be inconsistent with its fiduciary duties obligations to the shareholders stockholders of the Company under Applicable Law, then the Company may applicable Laws;
(Aii) 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 disclose any non-public information except pursuant relating 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 of Directors of the Company or any committee thereof or of its Subsidiaries 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 the Company Financial Advisor or its financial advisor and 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 Takeover Proposal constitutes, or could reasonably be expected to lead toresult in, a Superior Proposal and/or 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) direct any Persons concurrently discloses the same such non-public information to this Agreement, including the specific provisions of this Section 5.3.MergerCo if such non-public information has not previously been disclosed to MergerCo;
(ciii) From and after the date hereofwithdraw, and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof, modify or amend the Company shall as promptly as practicable Board Recommendation in a manner adverse to MergerCo or SibCo (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“Recommendation Change”), 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 Board (or its Representativesacting through the Special Committee, if then in existence) 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 has determined in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that the failure to do so take such action would constitute a breach be inconsistent with its fiduciary obligations to the stockholders of the directors’ 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 termination 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 failure to take such action would be inconsistent with its fiduciary duties obligations to the stockholders of the Company under Applicable Lawapplicable Laws, (2) the Company shall have given MergerCo prompt written notice advising MergerCo of (A) the decision of the Company Board (acting through the Special Committee, if then in existence) to take such action and (B) the material terms and conditions of the Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed transaction 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) exempt 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, unless such actions are taken simultaneously with a termination of this Agreement in accordance with its terms.
(g) Any withdrawal, modification or amendment by the Special Committee of its recommendation that forms a part of the Company Board Recommendation in any manner adverse to MergerCo or SibCo or that is inconsistent with the Company Board Recommendation, and any approval, endorsement or recommendation by the Special Committee of any Takeover Proposal, and any resolution or announcement of an intention of the Special Committee with respect to any of the foregoing, shall be deemed and treated for all purposes of this Agreement as if such action were taken by the Company Board with respect to the Company Board Recommendation or any such Takeover Proposal, as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Neubauer Joseph), Merger Agreement (Aramark Corp/De)
No Solicitation. (a) Subject Each of Republic and Allied agrees that it shall not, and it shall cause its Subsidiaries not to, and that it shall direct and cause its and its Subsidiaries’ respective officers, directors and employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its Subsidiaries) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or otherwise knowingly encourage or facilitate any inquiries or the making by any third Person or group (as defined in the Exchange Act) of third Persons (other than the other party hereto and/or its Subsidiaries and their respective Representatives) (a “Third Party”) of any proposal or offer with respect to Sections 5.4(ba purchase, merger, reorganization, share exchange, consolidation, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization or similar transaction involving 20% or more of its consolidated total revenues or assets (including by means of a transaction with respect to securities of such party or its Subsidiaries) or 20% or more of its outstanding shares of common stock (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”, it being understood that none of the transactions contemplated by this Agreement or set forth in Section 6.01(a) of the Allied Disclosure Schedule or Section 6.01(b) of the Republic Disclosure Schedule, as applicable, shall be deemed to constitute an Acquisition Proposal). Each of Republic and (c) Allied further agrees that it shall not, and it shall cause each of its Subsidiaries not to, and it shall direct and cause its and its Subsidiaries’ Representatives not to, directly or indirectly, except as permitted by this Section 5.36.02(b), until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall notengage in any negotiations or discussions with, nor shall the Company permit or provide any of its Subsidiaries information or data to, nor shall the Company authorize any of its Representatives Third Party relating to an Acquisition Proposal, or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or otherwise knowingly encourage or facilitate any inquiries, proposals effort or offers that constitute, attempt to make or that would reasonably be expected to lead to, implement an Acquisition Proposal, (Bii) engage inapprove or recommend, continue or otherwise participate in propose publicly to approve or recommend, any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish (iii) execute or enter into, or publicly propose to any Third Party information accept or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or an agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any Proposal, including a letter of intent, agreement in principle, option agreement, contract merger agreement, acquisition agreement or commitment requiring the Company to abandon, terminate other agreement (whether binding or fail to consummate the transactions contemplated by this Agreement; and
(iinot) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to in furtherance of an Acquisition Proposal.
(b) Notwithstanding anything to the contrary provisions of Section 6.02(a), nothing contained in this AgreementAgreement shall prevent Republic or Allied, ifor their respective Boards of Directors, at any time prior from (A) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal (provided, however, no Change in Recommendation may be made unless otherwise permitted by this Section 6.02(b)), (B) providing information in response to a request therefor by a Third Party who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Republic or Allied, as the case may be, receives from the Third Party so requesting such information an executed confidentiality agreement on terms no less favorable in the aggregate to the Acceptance Timedisclosing party than those contained in the Confidentiality Agreement (but which need not contain standstill or non-solicitation of employee provisions and does not contain other terms that prevent Republic or Allied, as the case may be, from complying with its obligations under this Section 6.02) and so long as any information provided to such Third Party that has not previously been provided to the other party is provided to the other party as promptly as practicable thereafter, (C) engaging in any negotiations or discussions (including solicitation of a revised Acquisition Proposal) with any Third Party who has made an unsolicited bona fide written Acquisition Proposal, (D) effecting a Change in Recommendation in respect of an Acquisition Proposal or (E) effecting a Change in Recommendation other than in respect of an Acquisition Proposal; provided, however, that neither Republic nor Allied shall take any of the foregoing actions unless:
(i) the Company receives a written Acquisition Proposal from a Third Partyin each such case referenced in clause (B) or (C) above, (ii1) the applicable Stockholder Approval has not yet been obtained, (2) such Acquisition Proposal did party shall not result from a breach have breached the provisions of this Section 5.3 6.02 and (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), (iii3) the Board of Directors of the Company or any committee thereof party determines in good faith, faith (after consultation with the Company Financial Advisor its financial advisor of national reputation and outside legal counsel, ) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal;
(ii) in each case referenced in clause (D) above, and prior to Republic or Allied, as the case may be, effecting a Change in Recommendation with respect to an Acquisition Proposal, (iv1) the applicable Stockholder Approval shall not have been obtained, (2) such party shall not have breached the provisions of this Section 6.02, (3) 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 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 party 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 have determined in good faith, after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, that failure to do so would constitute such Acquisition Proposal constitutes a breach of the directors’ fiduciary duties under Applicable Law.Superior Proposal, 38
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
No Solicitation. (a) Subject The Company and its Subsidiaries shall, and shall direct their respective Representatives to, immediately cease and cause to Sections 5.4(bbe terminated, and shall not authorize or knowingly permit any of the Company’s or its Subsidiaries’ Representatives to continue, any and all existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (and in any event within three (3) Business Days following the date hereof) request in writing that each Third Party that has executed a confidentiality agreement since the date which is one year prior to the date of this Agreement in connection with its consideration of acquiring the Company or any material portion thereof return or destroy all confidential information heretofore furnished to such Third Party by or on behalf of the Company, and the Company shall use its reasonable best efforts to have such information returned or destroyed (c) and except as to the extent destruction or return of such information is permitted by such confidentiality agreement).
(b) At all times during the period commencing with the execution and delivery of this Section 5.3, Agreement and continuing until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) Article VIII and the Effective Time, the Company and its Subsidiaries shall not, nor not (and shall the Company not authorize or knowingly permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s their Representatives to, and the Company shall not publicly propose to), directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, or knowingly encourage, facilitate or induce the making, submission or announcement of an Acquisition Proposal, (ii) knowingly encourage furnish to any inquiriesThird Party any non-public information relating to the Company or any of its Subsidiaries for the purpose of assisting or facilitating the making of an Acquisition Proposal or any inquiry, proposals offer or offers proposal that constitutewould reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with respect to an Acquisition Proposal with any Third Party or (iv) execute or enter into any letter of intent, memorandum of understanding or Contract contemplating or otherwise relating to an Acquisition Transaction (other than a confidentiality agreement pursuant to this Section 6.1(b)); provided, however, that notwithstanding the foregoing, prior to obtaining the Requisite Shareholder Approval, the Company Board may, directly or indirectly through any Representative, with respect to any Third Party that has made (and not withdrawn) an Acquisition Proposal that the Company Board reasonably believes is bona fide after the date of this Agreement that did not result from a breach (or deemed breach) of this Section 6.1 that the Company Board concludes in good faith (after consultation with its financial advisor and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal, (A) engage or participate in discussions or negotiations with such Third Party and its Representatives and/or (B) furnish to such Third Party and its Representatives any information (including non-public 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 such confidentiality agreement need not contain any “standstill” or similar provision that would prohibit such Third Party from making any Acquisition Proposal) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 6.1 (which confidentiality agreement shall be provided to Parent for informational purposes immediately following the execution and delivery thereof), provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties to shareholders of the Company under California Law, (2) solely with respect to the initial contact with respect to any Third Party, at least twenty-four (24) hours prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Third Party, the Company shall have provided the notice required by Section 6.1(d) (and if such Acquisition Proposal is in written form, the Company shall give Parent a copy thereof) and notice of the Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such Third Party and (3) 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 or made available by the Company to Parent or any of its Representatives).
(c) Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any action taken by any Representative of the Company or any of its Subsidiaries that would be a breach of the restrictions set forth in this Section 6.1 if taken by the Company shall be deemed to be a breach of this Section 6.1 by the Company for all purposes of and under this Agreement; provided, however, that any such action taken by any Representative of the Company or any of its Subsidiaries (other than any member of the Company Board, the Company Board’s financial advisor or outside legal counsel or any Senior Member of Management) shall not be deemed to be a breach of this Section 6.1 by the Company, unless such action was authorized, directed or knowingly permitted by any member of the Company Board or any Senior Member of Management.
(d) The Company shall promptly, and in all cases within twenty-four (24) hours of its receipt, advise Parent orally and in writing of its receipt of any Acquisition Proposal or any request for information or inquiry with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 including the terms and conditions of, and identity of an Acquisition Proposal made by such Third Party so as to determine whether the Person or group making, such Acquisition Proposal constitutesProposal, request 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 5.3inquiry.
(ce) From and after the date hereof, and except to the extent expressly prohibited by a confidentiality agreement in place as The Company shall keep Parent promptly informed of the date hereof, the Company shall as promptly as practicable (status 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 (including all material amendments or proposed amendments) 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 request or inquiry and, promptly upon receipt of any change in price or form of consideration or other written material amendment thereto)or written proposed amendment of any such Acquisition Proposal, including by providing the Company shall give Parent a copy of material documentation relating thereto that is exchanged between thereof. In addition to the Third Party foregoing, the Company shall provide Parent with written notice at least seventy-two (72) hours (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except shorter period as may be provided 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 members of the Company or any Board) in advance of its Subsidiaries is a party, other than to the extent the Board of Directors meeting of the Company or any committee thereof determines in good faith, after consultation with Board at which the Company Financial Advisor and outside legal counselBoard is reasonably expected to consider an Acquisition Proposal, that failure an inquiry relating to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawpotential Acquisition Proposal, or a request to provide non-public information to any Person.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Micrel Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination For purposes of this Agreement pursuant to Section 8.1:
Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and (ii) an “Alternative Transaction” means (A) with respect to Myson and its Affiliates, a transaction (other than the Company transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of Myson (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests or profits of Myson or its Affiliates, in any case, whether such transaction takes the form of a sale of shares or other equity, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to Myson and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning any business combination with any Person.
(b) To induce Mag Mile Capital to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, Myson shall not, nor and shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of cause its Representatives or any to not, without the prior written consent of its Subsidiary’s Representatives to, and the Company shall not publicly propose toother Party, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, entertain, discuss, negotiate, assist, initiate or facilitate the making, submission or knowingly encourage announcement of, or intentionally encourage, any inquiriesAcquisition Proposal, proposals (ii) furnish any non-public information regarding such Party or offers that constituteits Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that would reasonably could be expected to lead to, an Acquisition Proposal, (Biv) engage inapprove, continue endorse or otherwise participate in recommend, or publicly propose to approve, endorse or recommend, any discussions or negotiations with any Third Party regarding an Acquisition Proposal, (v) negotiate or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect principle, acquisition agreement or other similar agreement related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
, or (bvi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party. Notwithstanding anything to the contrary contained in this Agreementforegoing, if, at any time prior to no disclosure that the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach board of this Section 5.3 (except for any immaterial breach directors of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines Myson may determine in good faith, faith (after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 that Myson is required to make under applicable Law will constitute a Third Party that did not result from a breach violation 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 Myson shall notify Mag Mile Capital as promptly as practicable (and in any event within twenty-four (24) 48 hours) notify Parent orally and in writing of the receipt by Myson or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an 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 developmentsrequest for non-public information relating to Myson or its Affiliates, discussions or negotiations regarding any such Acquisition Proposalspecifying in each case, 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 thereof if in writing or a written summary thereof if oral) and the identity of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) party making such inquiry, proposal, offer or request for information. Myson shall keep Mag Mile Capital promptly informed of the status of any such inquiries, proposals, offers or requests for information. Myson shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and the Company (shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions 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)negotiations.
(d) The Company agrees not to release or permit provisions of this Section 5.8 shall apply only in the release of any Person fromevent that this Agreement is executed no later than March 24, or to waive or permit 2023 and that the waiver or termination of any provision ofMag Mile Capital Audited Financials are completed no later than March 24, 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law2023.
Appears in 2 contracts
Sources: Reorganization Agreement (Mag Mile Capital, Inc.), Reorganization Agreement (Myson, Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and During the Pre-Closing Period, except as expressly permitted by this Section 5.35.6(c), until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor and shall the Company permit any of cause its Subsidiaries toand their respective directors, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toofficers, employees, investment bankers, financial advisors, attorneys, accountants, agents and the Company shall other representatives (collectively, “Representatives”) not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) initiate, solicit, initiate, facilitate or knowingly encourage or knowingly facilitate (including through the furnishing of any inquiriesnonpublic information) the submission or announcement of any Takeover Proposal or any inquiry, proposals indication of interest, offer or offers that constitute, or proposal that would reasonably be expected to lead toto a Takeover Proposal (a “Takeover Inquiry”); (ii) participate, an Acquisition Proposal, (B) engage in, in or continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party Person any information in connection with, or provide for the purpose of knowingly encouraging or knowingly facilitating a Takeover Proposal or Takeover Inquiry; (iii) waive, terminate, modify or fail to enforce any Third Party access “standstill” or confidentiality obligation of any Person (other than any party hereto) with respect to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries; (iv) approve, in each case for the purpose of encouraging endorse or facilitating an Acquisition recommend any Takeover Proposal or Takeover Inquiry (Cor resolve or publicly propose to do any of the foregoing); or (v) enter into any agreement, agreement in principle, letter of intent, agreement, contract, commitment intent or agreement in principle similar document with respect to an Acquisition a Takeover Proposal or Takeover Inquiry (other than an Acceptable Confidentiality AgreementAgreement entered into in accordance with this Section 5.6) or enter into accept any agreement, contract Takeover Proposal or commitment requiring Takeover Inquiry (or resolve or publicly propose to do any of the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalforegoing).
(b) Notwithstanding anything the foregoing, nothing contained in Section 5.6(a) or elsewhere in this Agreement shall prohibit the Company or the Company Board from (i) stating and disclosing to the contrary contained Company’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including a “stop, look and listen” statement pursuant to Rule 14d-9(f) of the Exchange Act, or (ii) making any other legally required disclosure to the Company’s stockholders of or relating to the fact that a Takeover Proposal or Takeover Inquiry has been made, the identity of the party making such Takeover Proposal or Takeover Inquiry or any legally required disclosure of the material terms of such Takeover Proposal or Takeover Inquiry; provided, that any such disclosure that has the effect of withdrawing, modifying or qualifying in any manner adverse to Parent, the Company Board Recommendation, shall be deemed to be a Company Adverse Change Recommendation unless the Company Board expressly publicly reaffirms the Company Board Recommendation in such communication without any qualification; provided, further, that this Agreement, if, Section 5.6(b) shall not be deemed to permit the Company Board to make a Company Adverse Change Recommendation except to the extent permitted by Section 5.6(f)(ii).
(c) If at any time on or after the date of this Agreement and prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 Agreementreceives from a third party a bona fide written unsolicited Takeover Proposal, the Company and its Representatives may (without any determination by the Board 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 third party solely in order to clarify and understand the terms and conditions of an Acquisition such Takeover Proposal made by such Third Party so as to determine whether if such Acquisition Takeover Proposal constitutes, or could would reasonably be expected to constitute, a Superior Proposal, (y) enter into and participate in discussions or negotiations with such third party and its Representatives regarding such Takeover Proposal and (z) furnish access and nonpublic information to such third party in response to a request therefor, in each case, if and only if: (i) prior to taking any action contemplated in clauses (y) or (z) above, the Company shall have provided at least 24 hours prior written notice to Parent of its intent to take any such action and the Company Board shall have determined in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that such Takeover Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and/or and that the failure to take such action contemplated in clauses (y) direct any Persons to this Agreement, including or (z) above would be inconsistent with the specific provisions of this Section 5.3.
(c) From and after the date hereof, and except Company Board’s fiduciary duties to the extent expressly prohibited by a confidentiality agreement in place as Company’s stockholders under applicable Law; (ii) there shall have been no breach or violation of the date hereof, the Company shall as terms of Section 5.6(a) in any material respect in connection with such third party making such Takeover Proposal; and (iii) promptly as practicable (and in any event within twenty-four (24) 24 hours) notify after furnishing or making available any information to such third party, the Company furnishes or makes available such information to Parent (to the extent such information has not been previously furnished or made available to Parent). Any nonpublic information furnished or made available to such third party shall be subject to an executed confidentiality agreement in a customary form, which shall be executed prior to the time such information is furnished or made available, that is no less restrictive in the aggregate to the other party than the Confidentiality Agreement is on Parent at such time (“Acceptable Confidentiality Agreement”); provided, that the Company shall not enter into any confidentiality agreement with any person on or after the date of this Agreement that prohibits the Company from providing any information to Parent in accordance with this Section 5.6 or otherwise prohibits the Company from complying with its obligations under this Agreement; provided, further, that the Company shall not provide information to any Person pursuant to any confidentiality agreement entered into prior to the date of this Agreement unless such Person agrees prior to receipt of such information to waive any provision that would prohibit the Company from providing any information to Parent in accordance with this Section 5.6 or otherwise prohibit the Company from complying with its obligations under this Agreement.
(d) During the Pre-Closing Period, the Company shall (1) promptly (and in any event within 24 hours) advise Parent in writing of the receipt of any Acquisition ProposalTakeover Proposal or Takeover Inquiry that is made or submitted by any Person during the Pre-Closing Period, which notification shall include (i2) provide to Parent a copy summary of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and thereof (ii) including the identity of the Third Party Person making such Acquisition Proposal. The Company shall thereafter Takeover Proposal or Takeover Inquiry and, if applicable, complete copies of any written request, inquiry, proposal, indication of interest or offer (or written summaries thereof if the same were made in oral form), including proposed agreements and any other written communications), (3) keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or negotiations regarding such Takeover Proposal or Takeover Inquiry (including any such Acquisition Proposal, and modifications to the financial or other material terms and conditions thereof of such Takeover Proposal or Takeover Inquiry) on a prompt basis (including and in any change in price or form of consideration or other material amendment theretoevent within 24 hours), including by providing a copy and (4) upon the request 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 Parent, reasonably inform Parent of the date hereof)status of such Takeover Proposal or Takeover Inquiry.
(de) The Company agrees not shall, and shall cause its Subsidiaries and Representatives, to, immediately cease and cause to release be terminated any solicitation, discussions or permit the release of negotiations with any Person from, (other than Parent) conducted on or prior to waive the date of this Agreement that relate to any Takeover Proposal or permit the waiver Takeover Inquiry or termination of any provision of, any confidentiality, “standstill” or similar agreement request for nonpublic information relating to which any of the Company with respect to any Takeover Proposal or Takeover Inquiry. The Company shall also immediately terminate all physical and electronic data room access previously granted to any such Person or any of its Subsidiaries Representatives. Within 24 hours after executing this Agreement, the Company shall deliver a written notice to each such Person providing only that the Company is a partyending all discussions and negotiations with such Person with respect to any Takeover Proposal or Takeover Inquiry, other than to which notice shall also request the extent the Board return or destruction of Directors all confidential information provided by or on behalf of the Company to any such Person or any committee thereof determines in good faith, of its Representatives promptly after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach date of the directors’ fiduciary duties under Applicable Lawthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Seattle Genetics Inc /Wa), Merger Agreement (Cascadian Therapeutics, Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination For purposes of this Agreement pursuant to Section 8.1:
Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and (ii) an “Alternative Transaction” means (A) with respect to ATAO and its Affiliates, a transaction (other than the Company transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of ATAO (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests or profits of ATAO or its Affiliates, in any case, whether such transaction takes the form of a sale of shares or other equity, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to ATAO and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning any business combination with any Person.
(b) To induce Premier to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, ATAO shall not, nor and shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of cause its Representatives or any to not, without the prior written consent of its Subsidiary’s Representatives to, and the Company shall not publicly propose toother Party, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, entertain, discuss, negotiate, assist, initiate or facilitate the making, submission or knowingly encourage announcement of, or intentionally encourage, any inquiriesAcquisition Proposal, proposals (ii) furnish any non-public information regarding such Party or offers that constituteits Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that would reasonably could be expected to lead to, an Acquisition Proposal, (Biv) engage inapprove, continue endorse or otherwise participate in recommend, or publicly propose to approve, endorse or recommend, any discussions or negotiations with any Third Party regarding an Acquisition Proposal, (v) negotiate or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect principle, acquisition agreement or other similar agreement related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
, or (bvi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party. Notwithstanding anything to the contrary contained in this Agreementforegoing, if, at any time prior to no disclosure that the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach board of this Section 5.3 (except for any immaterial breach directors of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines ATAO may determine in good faith, faith (after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 that ATAO is required to make under applicable Law will constitute a Third Party that did not result from a breach violation 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 ATAO shall notify Premier as promptly as practicable (and in any event within twenty-four (24) 48 hours) notify Parent orally and in writing of the receipt by ATAO or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an 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 developmentsrequest for non-public information relating to ATAO or its Affiliates, discussions or negotiations regarding any such Acquisition Proposalspecifying in each case, 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 thereof if in writing or a written summary thereof if oral) and the identity of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) party making such inquiry, proposal, offer or request for information. ATAO shall keep Premier promptly informed of the status of any such inquiries, proposals, offers or requests for information. ATAO shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions, or negotiations with any Person with respect to any Acquisition Proposal and the Company (shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions 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)negotiations.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Altair International Corp.), Merger Agreement (Altair International Corp.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until Sellers agree that neither Sellers nor the earlier to occur Company nor any of the Acceptance Time officers and directors of Parent or the termination of this Agreement pursuant Company shall, and that Sellers shall use commercially reasonable efforts to Section 8.1:
cause Parent's and the Company's employees, agents and representatives (iincluding any investment banker, attorney or accountant retained by Sellers or the Company) the Company not to (and shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company not authorize any of its Representatives or any of its Subsidiary’s Representatives them to, and the Company shall not publicly propose to, ) directly or indirectly indirectly: (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, facilitate knowingly encourage or knowingly encourage facilitate any inquiries, proposals or offers that constituteinquiries with respect to, or that would reasonably be expected to lead tothe making, submission or announcement of, any offer or proposal for an Acquisition (as defined below) of the Company (an "Acquisition Proposal, "); (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party Person any nonpublic information or provide with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Third Party access Acquisition Proposal, except as to the businesses, properties, assets or personnel existence of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal these provisions; or (Civ) enter into any letter of intent, agreement, intent or similar document or any contract, agreement or commitment contemplating any Acquisition Proposal or agreement in principle transaction contemplated thereby. Sellers and the Company will (i) immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to an any Acquisition Proposal, and (ii) immediately notify Purchaser if any Acquisition Proposal is received by Sellers or the Company. For purposes of this Section 5.1, "Acquisition" shall mean any of the following transactions (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination or similar transaction involving the Company; and
(ii) a sale or other disposition by the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives of 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 who is not an officer or director significant portion of the Company), 's assets; or (iii) the Board acquisition by any Person or group, directly or indirectly, of Directors beneficial ownership or a right to acquire beneficial ownership of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board shares 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 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 capital stock 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nstor Technologies Inc), Stock Purchase Agreement (Palo Alto Acquisition CORP)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by after the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) Article 7, the Company and its Subsidiaries shall not, nor and each of them shall use its reasonable best efforts to cause the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly indirectly, (i) solicit, initiate or encourage, or take any other action intended to facilitate or with the reasonably foreseeable effect of facilitating, any inquiry in connection with, or the making of any proposal by any party that constitutes, an Acquisition Proposal (other than with respect to Parent the Offer and Purchaserthe Merger), (Aii) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party party (other than Parent, Purchaser or the Parent Representatives) regarding an Acquisition Proposal, or (iii) furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate, or with the reasonably foreseeable effect of facilitating, an Acceptable Confidentiality AgreementAcquisition Proposal, or (iv) or enter into any agreement, contract arrangement or commitment requiring understanding with respect to, or otherwise endorse, any Acquisition Proposal; provided, however, that nothing contained in this Section 5.10(a) shall prohibit the Company to abandonBoard or the Special Committee from furnishing information to, terminate or fail to consummate engaging in discussions or negotiations with, any party that makes an Acquisition Proposal if (A) Purchaser has not yet accepted for payment and paid for Shares in the transactions contemplated by this Agreement; and
Offer, (iiB) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel counsel, that the failure failing to take the actions referred to in clause (A) or (B) below such action would constitute create a reasonable likelihood of a breach of its fiduciary duties to the Company’s shareholders under applicable Law, (C) the Acquisition Proposal constitutes a Superior Proposal, (D) prior to furnishing such information to, or engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to the Company, in all material respects, than those contained in the Confidentiality Agreement, and (E) the Company notifies Parent not less than three (3) Business Days prior to taking such action (which notice shall identify the party making the proposal, and describe the material terms thereof). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.
(b) The Company Board shall not withdraw (or modify in a manner adverse to Parent or Purchaser) or propose publicly to withdraw (or modify in a manner adverse to Parent or Purchaser) the Company Board Recommendation, or recommend, or propose publicly to recommend, the approval or adoption of any Acquisition Proposal (other than an Acquisition Proposal made by Parent) (such action is referred to herein as an “Adverse Recommendation Change”), unless (A) the Company Board determines in good faith after consultation with its outside legal counsel that the failure to make such an Adverse Recommendation Change would create a reasonable likelihood of a breach of its fiduciary duties to the Company’s shareholders under applicable Law, (B) the Company shall have complied in all respects with this Section 5.10 (other than immaterial failures to comply that do not prejudice Purchaser or Parent in any respect), (C) the Company shall have given Parent at least three (3) Business Days prior written notice of its intent to make an Adverse Recommendation Change and, in the event such Adverse Recommendation Change is the result of having received an Acquisition Proposal, attaching a description (if applicable) of all material terms and conditions of such Acquisition Proposal (it being agreed that any amendment to the amount or form of consideration of the Acquisition Proposal shall require a new notice and a new three (3) Business Day period), (D) during such three (3) Business Day period, the Company engages in good faith negotiations with Parent with respect to such changes to the terms of the Offer, the Merger and this Agreement as may be proposed by Parent, and (E) if applicable, the Company does not receive from Parent a definitive and binding offer to enter into a definitive agreement which the Company Board determines, in good faith in consultation with its financial advisors, is at least as favorable to the shareholders of the Company under Applicable Lawas the Acquisition Proposal. Notwithstanding the foregoing, then a communication by the Company may (A) furnish information and data with respect Board 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 shareholders of the Company pursuant to Rule 14e-2(a) or Rule 14d-9 of the Exchange Act shall not, in and of itself, be deemed to constitute an Adverse Recommendation Change, but any statement by the Company pursuant to Rule 14e-2(a) other than a recommendation to Company shareholders to accept the Offer (or any failure to make within the prescribed time period a recommendation to Company shareholders) shall be considered an Adverse Recommendation Change.
(c) If at any time prior to the acceptance for payment and payment of Shares by Purchaser in the Offer, the Company Board determines in good faith after consultation with 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, howeveroutside legal counsel, 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 failure to accept 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 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 unsolicited Superior Proposal from a Third Party that did not result from a breach of this Section 5.3 (except for any immaterial 5.10 would create a reasonable likelihood of a breach of this Section 5.3 by a Representative of its fiduciary duties to the Company’s shareholders under applicable Law, the Company who is Board may terminate this Agreement pursuant to Section 7.3 hereof; provided, however, that the Company shall 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 terminate this Agreement, including and any such termination shall be void and of no force and effect, unless (i) the specific provisions of this Company pays to Parent the Termination Payment required by Section 5.3.
7.5(a) and enters into a definitive agreement concerning the Superior Proposal, (cii) 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 have complied in all respects with this Section 5.10 (and other than immaterial failures to comply that do not prejudice Purchaser or Parent in any event within twenty-four respect), (24iii) hoursthe Company shall have given Parent at least three (3) notify Parent Business Days prior written notice of any Acquisition Proposalits intent to terminate the Agreement, which notification shall include (i) attaching a copy description of the applicable written Acquisition Proposal (or, if oral, the all material terms and conditions of the Superior Proposal to such Acquisition Proposal) and notice (ii) it being agreed that any amendments to 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 amount or form of consideration or other material amendment theretoof the Superior Proposal shall require a new notice and a new three (3) Business Day period), including by providing a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representativesiv) making during such Acquisition Proposal and three (3) Business Day period, the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except engages in good faith negotiations with Parent with respect to such changes to the extent expressly prohibited by a confidentiality agreement in place as terms of the date hereof).
Offer, the Merger and this Agreement as may be proposed by Parent, and (dv) The Parent does not make prior to such termination a definitive and binding offer to enter into a definitive agreement which the Company agrees not Board determines, in good faith in consultation with its financial advisors is at least as favorable 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 shareholders of the Company as the Superior Proposal; provided, however, that if the Superior Proposal consists entirely of cash consideration, an offer by Parent involving per share cash consideration payable to holders of Common Shares equal to or any in excess of its Subsidiaries is a party, other than the per share cash consideration described in the Superior Proposal shall be deemed “at least as favorable to the extent the Board of Directors shareholders” of the Company or any committee thereof determines as the Superior Proposal; provided that the conditions to Parent’s obligation to close the Merger are, in the opinion of the Company’s Board determined in good faith, faith after consultation with the Company Financial Advisor and outside Company’s legal counsel, that failure no more onerous to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawCompany and its shareholders than those contained in the Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Guideline, Inc.)
No Solicitation. (a) Subject to Sections 5.4(bExcept as provided in Section 6.6(b) and (c) and except as permitted by this Section 5.3below, the Company agrees that from the date hereof until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) Agreement, the Company shall will not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) through any officer, director, affiliate or agent of the Company, or otherwise, solicit, initiate, facilitate entertain, or knowingly encourage any inquiries, proposals or offers that constitute, from any person other than Parent or that would reasonably be expected to lead to, an Acquisition Proposal, its affiliates (Ba "third party") engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish relating to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel possible acquisition of the Company or any of its Subsidiariessubsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) (an "Alternative Acquisition"), or engage in each case for any recapitalization or sale of any equity interest in or sale or assignment of substantial assets of the purpose Company or any of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal its subsidiaries (other than pursuant to the exercise of options and Rights outstanding on the date hereof or granted following the date hereof with Parent's written permission) to a third party (an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring "Equity Transaction"); nor will the Company participate in any negotiations regarding, or furnish to abandonany third party any information with respect to, terminate or fail otherwise cooperate with, facilitate or encourage any effort or attempt by any third party person to consummate the transactions contemplated by this Agreement; and
do or seek, any Alternative Acquisition or Equity Transaction (ii) it being understood that the Company shallmay make available copies of this Section 6.6 to third parties who are not solicited by Company or any officer, and shall cause its Subsidiaries todirector, and shall direct affiliate or agent of the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal).
(b) Notwithstanding anything the foregoing, this Section 6.6 will not be violated and the Company shall be permitted to negotiate and provide information to any third party that provides a Bona Fide Offer, provided that the contrary contained Company shall have first notified the Parent in writing of its receipt of such proposal and the material terms thereof. For purposes of this Agreement, if, at a "Bona Fide Offer" means any time prior to the 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 bona fide proposal made by a Representative of the Company who is not third party with respect to an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Alternative Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) on terms which the Board of Directors of the Company determines in its good faith judgment (after consultation with its outside legal counsel that the failure financial advisors) to take the actions referred to in clause (A) or (B) below would constitute a breach of its fiduciary duties be more favorable to the shareholders of Company's stockholders than the Company under Applicable LawOffer and the Merger and for which financing, then the Company may (A) furnish information and data with respect to the Company and its Subsidiaries to extent required, is then committed or which, in the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel good faith judgment 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 of Directors of the Company or any committee thereof or (after consultation with the Company Financial Advisor or its outside legal counselfinancial advisors) (x) following the receipt is highly probable 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 being obtained 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 hereofthird party. In addition, the Company shall as promptly as practicable (may terminate this Agreement and in any event within twenty-four (24) hours) notify accept such Bona Fide Offer upon the payment to 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 fee provided 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)Section 6.4.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (S Acquisition Corp), Merger Agreement (Simulation Sciences Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until Until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize or permit any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent Parent, Merger Sub and PurchaserMerger LLC), (A) solicit, initiate, make, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, or otherwise cooperate in each case any way with any Third Party, relating to, in connection with or for the purpose of encouraging or facilitating facilitating, an Acquisition Proposal Proposal, or (C) enter into any letter of intent, agreement, contractContract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality AgreementAgreement to the extent permitted by Section 5.3(b)) or enter into any letter of intent, agreement, contract Contract, commitment or commitment agreement in principle requiring or that would require the Company to modify, delay, abandon, 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 and its Subsidiaries’ Representatives to, (A) immediately cease and terminate any existing discussions solicitation, encouragement, discussion, negotiation or negotiations communication with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalProposal and (B) use commercially reasonable efforts to cause any such Third Party (and its Representatives) in possession of confidential information about any Acquired Corporation to return or destroy all such information. Any violation of this Section 5.3 by any of the Company’s Subsidiaries or any Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(b) Notwithstanding anything to the contrary contained in this Agreementprovisions of Section 5.3(a), if, at any time prior to the Acceptance Timetime the Stockholder Approval is obtained, (i) the Company receives a bona fide written Acquisition Proposal from a Third PartyProposal, (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 who is not an officer or director of the Company5.3(a), (iii) the Board of Directors of the Company or any committee thereof reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could is reasonably be expected likely to lead toresult in, a Superior Proposal, Proposal and (iv) the Board of Directors of the Company reasonably determines in good faith faith, after consultation with the Company Financial Advisor and outside legal counsel counsel, that the failure failing to take the actions referred such action would be reasonably likely to in clause (A) or (B) below would constitute a breach of be inconsistent with its fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company may may, prior to obtaining the Stockholder Approval, (A) furnish information and data with respect to the Company and its the Company 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 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 shall not, and will not permit shall cause its Subsidiaries or and the Company’s and its or their Subsidiaries’ Representatives not to, furnish any non-public information or data concerning the Company or the Company Subsidiaries to such Third Party except pursuant to an Acceptable Confidentiality Agreement Agreement, and (2) will promptly shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, concurrently with the time such information or data is provided or made accessible to such Third Party, provide to Parent any material non-public information or data concerning the Company or its the Company 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 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 hereofthis Agreement, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) orally and in writing notify Parent of any inquiries, proposals or offers received by, any information requested from, or any negotiations or discussions sought to be initiated or continued with, the Company, any of its Subsidiaries or any Representatives of the Company or any of its Subsidiaries, in each case, in connection with, or which could reasonably be expected to lead to, an Acquisition Proposal, which notification shall include (i) a copy identify the name of the applicable written Acquisition Proposal (orThird Party making such inquiry, if oral, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such Acquisition Proposal) inquiry, proposal or request and (ii) include copies of all written materials provided to the identity Company, its Subsidiaries or any Representatives of the Third Party making Company or its Subsidiaries that describe any terms and conditions of any inquiry, proposal or request (and any subsequent changes to such Acquisition Proposalterms and conditions). 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 theretoconsideration), 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 RepresentativesSubsidiaries or Representatives of the Company or its Subsidiaries) within twenty twenty-four (24) hours after the receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)thereof.
(d) The Company agrees not to release or permit the release of any Person Third Party from, or to waive or permit the any Third Party to benefit from any waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any of its Subsidiaries Company Subsidiary is a partyparty (a “Standstill Release/Waiver”); provided, other than that the Company may provide a Standstill Release/Waiver to the limited extent necessary to permit a Third Party to make a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving an Acquisition Proposal to the extent the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so provide such a Standstill Release/Waiver would constitute a breach of be inconsistent with the directors’ fiduciary duties under Applicable applicable Law.
(e) Nothing contained in this Section 5.3 or Section 5.4 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 and/or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with outside legal counsel, the failure to do so would be reasonably likely to cause the Board of Directors of the Company to violate its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that any such disclosure (other than issuance by the Company of a “stop, look and listen communication” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Change Recommendation unless the Board of Directors of the Company, in connection with such communication, publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company’s Board of Directors with respect to this Agreement, without disclosing any Adverse Change Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until Until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize or permit any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent Parent, Merger Sub and PurchaserMerger LLC), (A) solicit, initiate, make, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, or otherwise cooperate in each case any way with any Third Party, relating to, in connection with or for the purpose of encouraging or facilitating facilitating, an Acquisition Proposal Proposal, or (C) enter into any letter of intent, agreement, contractContract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality AgreementAgreement to the extent permitted by Section 5.3(b)) or enter into any letter of intent, agreement, contract Contract, commitment or commitment agreement in principle requiring or that would require the Company to modify, delay, abandon, 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 and its Subsidiaries’ Representatives to, (A) immediately cease and terminate any existing discussions solicitation, encouragement, discussion, negotiation or negotiations communication with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalProposal and (B) use commercially reasonable efforts to cause any such Third Party (and its Representatives) in possession of confidential information about any Acquired Corporation to return or destroy all such information. Any violation of this Section 5.3 by any of the Company’s Subsidiaries or any Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(b) Notwithstanding anything to the contrary contained in this Agreementprovisions of Section 5.3(a), if, at any time prior to the Acceptance Timetime the Stockholder Approval is obtained, (i) the Company receives a bona fide written Acquisition Proposal from a Third PartyProposal, (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 who is not an officer or director of the Company5.3(a), (iii) the Board of Directors of the Company or any committee thereof reasonably determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could is reasonably be expected likely to lead toresult in, a Superior Proposal, Proposal and (iv) the Board of Directors of the Company reasonably determines in good faith faith, after consultation with the Company Financial Advisor and outside legal counsel counsel, that the failure failing to take the actions referred such action would be reasonably likely to in clause (A) or (B) below would constitute a breach of be inconsistent with its fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company may may, prior to obtaining the Stockholder Approval, (A) furnish information and data with respect to the Company and its the Company 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 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 shall not, and will not permit shall cause its Subsidiaries or and the Company’s and its or their Subsidiaries’ Representatives not to, furnish any non-public information or data concerning the Company or the Company Subsidiaries to such Third Party except pursuant to an Acceptable Confidentiality Agreement Agreement, and (2) will promptly shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, concurrently with the time such information or data is provided or made accessible to such Third Party, provide to Parent any material non-public information or data concerning the Company or its the Company 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 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 hereofthis Agreement, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) orally and in writing notify Parent of any inquiries, proposals or offers received by, any information requested from, or any negotiations or discussions sought to be initiated or continued with, the Company, any of its Subsidiaries or any Representatives of the Company or any of its Subsidiaries, in each case, in connection with, or which could reasonably be expected to lead to, an Acquisition Proposal, which notification shall include (i) a copy identify the name of the applicable written Acquisition Proposal (orThird Party making such inquiry, if oral, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such Acquisition Proposal) inquiry, proposal or request and (ii) include copies of all written materials provided to the identity Company, its Subsidiaries or any Representatives of the Third Party making Company or its Subsidiaries that describe any terms and conditions of any inquiry, proposal or request (and any subsequent changes to such Acquisition Proposalterms and conditions). 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 theretoconsideration), 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 RepresentativesSubsidiaries or Representatives of the Company or its Subsidiaries) within twenty twenty-four (24) hours after the receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)thereof.
(d) The Company agrees not to release or permit the release of any Person Third Party from, or to waive or permit the any Third Party to benefit from any waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or any of its Subsidiaries Company Subsidiary is a party, other than .
(e) Nothing contained in this Section 5.3 or Section 5.4 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 and/or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the extent Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with outside legal counsel, the failure to do so would be reasonably likely to cause the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with to violate its fiduciary duties to the stockholders of the Company Financial Advisor and outside legal counselunder applicable Law; provided, however, that failure to do so would constitute any such disclosure (other than issuance by the Company of a breach “stop, look and listen communication” or similar communication of the directors’ fiduciary duties type contemplated by Rule 14d-9(f) promulgated under Applicable Lawthe Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Change Recommendation unless the Board of Directors of the Company, in connection with such communication, publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company’s Board of Directors with respect to this Agreement, without disclosing any Adverse Change Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
No Solicitation. (a) Subject During the period beginning on the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 9.1, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to Sections 5.4(b) and (c) and except as permitted be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 5.37.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Acceptance Effective Time or and the termination of this Agreement pursuant to Section 8.1:
(i) Termination Date, the Company and its Subsidiaries shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its and their respective Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly indirectly, (other than with respect to Parent and Purchaseri) solicit (including by way of furnishing non-public information), (A) solicit, initiate, facilitate initiate or knowingly encourage or facilitate any inquiries, proposals or offers that constituteinquiry with respect to, or the making, submission or announcement of, any proposal or offer that would constitutes, or is reasonably be expected to lead to, an Acquisition Alternative Proposal, (Bii) furnish to any Person (other than Parent or Merger Subs or their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Subs or their respective designees), in any such case relating to an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal with any Third Party regarding an Acquisition ProposalPerson, except to notify such Person as to the existence and content of the provisions of this Section 7.7, or furnish (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to any Third Party information communicate an Alternative Proposal to Company Board), or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalanti-takeover laws.
(b) Notwithstanding anything to the contrary contained set forth in this Section 7.7 or elsewhere in this Agreement, if, at any time prior to until the Acceptance Time, (i) Agreement of Merger contained in this Agreement shall have been approved by the Company receives a written Acquisition Proposal from a Third PartyRequired Vote, (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 who is not an officer may, directly or director of the Company)indirectly through one or more Affiliates or Representatives, (iii) the Board of Directors of the Company participate or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 engage in discussions or negotiations with with, furnish any non-public information relating to the Third Party making such Acquisition Proposal regarding such Acquisition Proposal Company and/or its Subsidiaries to, and/or afford access to the business, properties, assets, books, records or otherwise cooperate with or assist or participate inother non-public information, or facilitateto the personnel, any such discussions of the Company and/or its Subsidiaries to, a Person or negotiationsgroup of Persons that makes a bona fide Alternative Proposal (under circumstances in which the Company has complied with its non-solicitation obligations under Section 7.7(a)); 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 shall promptly provide make available to Parent and Merger Subs any material non-public information concerning the Company or and/or its Subsidiaries or access that is provided to any Person given such Third Party access which was not previously provided made available to Parent. Notwithstanding anything Parent or Merger Subs or their respective Representatives (which requirement may be satisfied by posting such information in the online data room established by the Company prior to the contrary contained in this Agreementdate hereof); and provided further that, prior to initiating any such action, the Company and its Representatives may Board shall have determined in good faith (without any determination by the Board of Directors of the Company or any committee thereof or after consultation with the Company Financial Advisor or its financial advisor and outside legal counsel) (x) following the receipt of an Acquisition that such Alternative Proposal from either constitutes 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 Superior Proposal made by such Third Party so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to lead result in a Superior Proposal; and provided further that prior to furnishing such information or access to, a Superior Proposal and/or or entering into substantive discussions (y) direct any Persons except as to this Agreement, including the specific provisions existence of this Section 5.37.7) or negotiations with, such Person(s), (A) the Company receives from such Person(s) an executed Acceptable Confidentiality Agreement and (B) the Company notifies Parent to the effect that it intends to furnish information or access to, or intends to enter into substantive discussions or negotiations with, such Person(s).
(c) From and Except as provided by Section 7.7(d), at any time after the date hereofexecution of this Agreement, the Company Board shall not:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Parent and except Merger Subs (a “Company Recommendation Change”); or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)) or authorize, approve or publicly recommend an Alternative Proposal or any agreement, understanding or arrangement relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 7.7(b)).
(d) Notwithstanding anything to the extent expressly prohibited by contrary set forth in this Agreement, if the Company is then in receipt of a confidentiality agreement bona fide written Alternative Proposal from any Person that is not withdrawn and that the Company Board concludes in place as good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal, the Company Board may (1) effect a Company Recommendation Change, and/or (2) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, to the shareholders of the date hereofCompany any Superior Proposal and authorize the Company to terminate this Agreement in accordance with Section 9.1(c)(ii) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, however, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 9.1(c)(ii) and enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal), then the Company Board may effect a Company Recommendation Change, if and only if:
(i) the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the shareholders of the Company under applicable laws; and
(ii) in the case of clause (x)(2) above, the Company shall as promptly as practicable have validly terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the Termination Fee in accordance with Section 9.2(a).
(and in e) The Company shall keep Parent reasonably informed regarding the matters contemplated by this Section 7.7 (including any event within twenty-four (24) hours) notify Parent Alternative Proposals). Without limiting the generality of any Acquisition Proposalforegoing, which notification shall include (i) a copy the Company shall promptly notify Parent if any proposals or offers with respect to an Alternative Proposal are received by the Company or any of the applicable written Acquisition Proposal (orits Representatives indicating, if oralin connection with such notice, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such Acquisition Proposal) proposals or offers (including any material amendments thereto), including any change in the Company’s intentions as previously notified, and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep agrees that it will promptly notify Parent reasonably informed on a reasonably current basis of the status of if any material developmentsnon-public information is requested from, or any discussions or negotiations regarding any such Acquisition Proposalare sought to be initiated or continued with, 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 Representatives indicating, in connection with such notice, the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified. The Company agrees that it and its Subsidiaries is a party, other than will not enter into any confidentiality agreement with any Person subsequent to the extent date hereof which prohibits the Board of Directors of Company from providing such information to Parent.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from (i) taking and disclosing to its shareholders a position contemplated by Rules 14d-9 or 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any committee thereof disclosure to its shareholders if the Company Board determines in good faith, faith (after consultation with the Company Financial Advisor and its outside legal counsel, ) that the failure to do so make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s shareholders under applicable law or would constitute a breach violation of applicable law. It is understood and agreed that, for purposes of this Agreement (including Section 9), a factually accurate public statement by the directors’ fiduciary duties under Applicable LawCompany that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Company Board, shall not constitute a Company Recommendation Change or an approval or recommendation with respect to any Alternative Proposal.
(g) Other than with respect to the Debt Commitment, neither Parent nor Merger Subs, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other Person, in any such case with respect to any Alternative Proposal involving the Company.
(h) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement (Surewest Communications)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3During the Pre-Closing Period, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company and the Company Subsidiaries shall not, nor shall the Company permit they authorize or instruct any of its Subsidiaries to, nor shall the Company authorize any of its their Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly indirectly, (i) solicit or initiate the submission of any Takeover Proposal by any Person (other than with respect to Parent and Purchaser), or its Affiliates or Representatives) or (Aii) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party Person any non-public information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition any Takeover Proposal by any Person (other than an Acceptable Confidentiality Agreement) Parent or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries Affiliates or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding Representatives); provided that notwithstanding anything to the contrary contained in this Section 4.3(a) or elsewhere in this Agreement, if, at any time prior to receipt of the Acceptance Timevote required pursuant to Section 7.4, (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 Special Committee or the Board of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor outside counsel and outside legal counselits financial advisor, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 do so would constitute a breach of be inconsistent with its fiduciary duties to the shareholders Company Common Stockholders under applicable Law, the Special Committee or the Board of the Company under Applicable Lawmay, then the Company may (A) furnish information and data with respect in response to the Company and its Subsidiaries to the Third Party making such Acquisition a bona fide, written Takeover 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 that was unsolicited 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 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 otherwise result from a breach of this Section 5.3 4.3(a), and subject to compliance with Section 4.3(c), (except for i) furnish nonpublic information with respect to the Company and the Company Subsidiaries to any immaterial breach Person pursuant to a confidentiality and standstill agreement on terms in all material respects not less restrictive to the other party than those contained in the Confidentiality Agreement and (ii) participate in discussions and negotiations regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of this Section 5.3 the restrictions set forth in the preceding sentence by a Representative of the Company who is not an officer Company, acting with or director without the authorization of the Company), contact such Third Party solely shall be deemed to be a breach of this Section 4.3(a) by the Company.
(b) Except as expressly permitted by this Section 4.3, neither the Special Committee nor the Board of the Company (nor any other committee thereof) shall (i) withdraw or modify, or propose to withdraw or modify, in order a manner adverse to clarify and understand Parent or Merger Sub, the terms and conditions of an Acquisition Proposal made Recommendation or any other approval or recommendation by such Third Party so as Special Committee or the Board of the Company (or any such committee thereof) of this Agreement or the Merger, (ii) approve or recommend any Takeover Proposal or (iii) cause the Company to determine whether such Acquisition Proposal constitutesenter into any letter of intent, agreement in principle, acquisition agreement or could reasonably be expected other similar agreement with respect to lead to, a Superior Proposal and/or (y) direct any Persons to Takeover Proposal. Notwithstanding the foregoing or anything else contained in this Agreement, including prior to receipt of the specific provisions vote required pursuant to Section 7.4, the Special Committee or the Board of the Company, to the extent it determines in good faith, after consultation with outside counsel, that failure to do so would be inconsistent with its fiduciary duties to the Company Common Stockholders under applicable Law, may (i) withdraw or modify the Recommendation or any other approval or recommendation of this Section 5.3Agreement or the Merger and/or (ii) approve or recommend any Superior Proposal.
(c) From and after the date hereof, and except In addition to the extent expressly prohibited by a confidentiality agreement in place as obligations of the date hereofCompany set forth in subsections (a) and (b) of this Section 4.3, the Company shall as promptly as practicable (and in any event all events within twenty-four (2424 hours of receipt) hours) notify shall advise Parent orally and in writing of any Acquisition request to the Company for nonpublic information regarding any Takeover Proposal or of any Takeover Proposal submitted to the Company or any inquiry directed to the Company with respect to a Takeover 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) request, Takeover Proposal or inquiry, and (ii) the identity of the Third Party Person making any such Acquisition ProposalTakeover Proposal or inquiry. The Company shall thereafter will keep Parent reasonably informed on a reasonably current basis in all material respects of the status and details (including amendments or proposed amendments) of any material developments, discussions such Takeover Proposal 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)inquiry.
(d) The Nothing contained in this Section 4.3 or elsewhere in this Agreement shall prohibit the Company agrees not from making any disclosure to release the Company Common Stockholders or permit any public announcement if, in 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 good faith judgment of the Company Special Committee 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 faithCompany, after consultation with outside counsel, failure to so disclose would be inconsistent with any applicable Law or any duty of the Board; provided that the Company Financial Advisor and outside legal counselshall not, that failure except in accordance with the provisions of this Section 4.3, withdraw or modify, or propose to do so would constitute a breach withdraw or modify, the Recommendation or any other recommendation of the directors’ fiduciary duties under Applicable LawMerger or approve or recommend, or propose to approve or recommend, a Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Wollensky Restaurant Group Inc), Agreement and Plan of Merger (Smith & Wollensky Restaurant Group Inc)
No Solicitation. (a) Subject 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 Sections 5.4(b(i) immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and (cii) request such Person to promptly return or destroy all confidential information concerning the Company and except the Company’s Subsidiaries. Except as permitted by this Section 5.35.2, the Company shall and shall cause each of its Subsidiaries and Representatives not to, from the date of this Agreement until the earlier to occur of the Acceptance Effective Time or or, if earlier, the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose toin accordance with Article VII, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries, proposals or offers that constituteinquiries regarding, or the making of any proposal or offer that would constitutes, or could reasonably be expected to lead to, an Acquisition a Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party other party information in connection with or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition facilitating, a Takeover Proposal or (C) enter into any letter of intent, agreement, contract, commitment agreement 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition a Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreementherein, if, if at any time on or after the date of this Agreement and prior to the Acceptance Time, (i) obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a written Acquisition Takeover Proposal from a Third Partyany Person, (ii) such Acquisition which Takeover Proposal was made or renewed on or after the date of this Agreement and that did not result from a any 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)5.2, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) if the Board of Directors of the Company determines in good faith faith, after consultation with independent financial advisors and outside legal counsel counsel, that the failure to take such action would be inconsistent with the actions referred to in clause (A) or (B) below would constitute a breach of its directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or is reasonably expected to the shareholders of the Company under Applicable Lawlead to a Superior Proposal, then the Company and its Representatives may (Ax) furnish furnish, pursuant to an Acceptable Confidentiality Agreement, information and data (including non-public information) with respect to the Company and its Subsidiaries to the Third Party making Person or group of Persons who has made 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 negotiationsTakeover Proposal; provided, however, provided 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 shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries or access that is provided to any Person given such Third Party access which was not previously provided to Parent. Notwithstanding anything to Parent or its Representatives; and (y) engage in or otherwise participate in discussions or negotiations with the contrary contained in this AgreementPerson or group of Persons making such Takeover Proposal; provided, further that the Company shall promptly provide to Parent (and its Representatives may in any event within 48 hours) (without i) a copy of any determination by the Board of Directors of Takeover Proposal made in writing provided to the Company or any committee thereof or consultation with of its Subsidiaries, and 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 identity of the Company who is not an officer or director Person making the Takeover Proposal, and (ii) a written summary of the Company), contact material terms of any such Third Party solely Takeover Proposal not made 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) writing. 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 (not grant any waiver, amendment or release under any standstill agreement without the prior written consent of Parent. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means any confidentiality 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 standstill agreement that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and 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 its Representatives) within twenty four (24) hours after receipt thereof (except amendments thereto 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 Company’s Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawDirectors.
Appears in 2 contracts
Sources: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by this Section 5.3, after the date hereof until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) Article 7, the Company Company, its subsidiaries and their affiliates shall not, nor and shall cause the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate initiate or knowingly encourage any inquiries, proposals (including by way of furnishing information or offers that constituteassistance), or take any other action to facilitate, any inquiry in connection with or the making of any proposal from any Person that would reasonably be expected to lead toconstitutes, an Acquisition Proposal, (Bii) engage inenter into, continue or otherwise explore, maintain, participate in or continue any discussions discussion or negotiations negotiation with any Third Party Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) regarding an Acquisition Proposal, or furnish to any Third Party Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) any information or provide otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) to make or effect an Acquisition Proposal, or (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal; provided, however, that nothing contained in this Section 5.11 shall prohibit the Company Board or the Special Committee from furnishing information to, or engaging in discussions or negotiations with (including making counter proposals to), any Person that makes an Acquisition Proposal if (A) the Company Board or the Special Committee determines in good faith after consultation with its outside legal counsel, that failing to take such action could be inconsistent with the Company Board’s or the Special Committee’s fiduciary duties to the Company’s stockholders under applicable Law, (B) the Acquisition Proposal constitutes a Superior Proposal, (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement with terms no less favorable to the Company, in all material respects, than those contained in the Confidentiality Agreement, and (D) the Company notifies Parent not less than 2 days prior to taking such action (which notice shall identify the person making the proposal, and describe the terms thereof). The issuance of the press release described in Section 5.06 above by the Company shall not be deemed a breach of this Section 5.11.
(b) From and after the date hereof until the earlier of the consummation of the Offer by Merger Sub or the termination of this Agreement pursuant to Article 7, if the Company Board or the Special Committee is entitled to furnish information to, or engage in discussions or negotiations with, any Person pursuant to Section 5.11(a), the Company Board may terminate this Agreement in respect of any Acquisition Proposal pursuant to the termination provisions set forth in Article 7 hereof if such Acquisition Proposal constitutes a Superior Proposal.
(c) The Company will promptly (but in any event within 24 hours) notify Parent of the receipt of any Acquisition Proposal.
(d) Nothing contained in this Agreement shall prevent the Company Board from taking, and disclosing to the Company stockholders, a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any Third Party access tender offer; provided, however, that none of the Company, the Company Board, the Special Committee or any Company Representative shall, except as permitted by Section 5.11(b) propose to approve or recommend any Acquisition Proposal.
(e) The Company and each of its subsidiaries shall immediately cease and cause its affiliates and the businessesCompany Representatives to cease any and all existing activities, propertiesdiscussions or negotiations with any parties (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) conducted heretofore with respect to any Acquisition Proposal.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean any offer or proposal for, or any indication of interest in, (i) any direct or indirect acquisition or purchase of 10% or more of the total assets of the Company and its subsidiaries, in a single transaction or personnel series of related transactions, other than in the ordinary course of the Company’s business, (ii) any direct or indirect acquisition or purchase of 10% or more of any class of equity securities of the Company or any of its Subsidiariessubsidiaries, in each case for the purpose a single transaction or series of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company)related transactions, (iii) the Board of Directors of the Company any tender offer or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, exchange offer (including a self-tender offer) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 if consummated 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 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 person beneficially owning 10% or more of any Acquisition Proposal, which notification shall include (i) a copy class 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 equity securities of the Company or any of its Subsidiaries is a partysubsidiaries, (iv) any merger, consolidation, share exchange, business combination, recapitalization, reclassification or other than to the extent the Board of Directors of similar transaction involving the Company or any committee thereof determines in good faithof its subsidiaries or (v) any public announcement of an agreement, after consultation with the Company Financial Advisor and outside legal counsel, that failure proposal or plan to do so would constitute a breach any of the directors’ fiduciary duties under Applicable Lawforegoing, other than the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Onesource Information Services Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company authorize any of its Representatives or any of its Subsidiary’s Representatives Company Subsidiary to, and the Company shall not publicly propose to, (i) directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate initiate or knowingly encourage the submission of any inquiries, proposals or offers that constituteCompany Takeover Proposal, or take any action designed to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition any Company Takeover Proposal, (Bii) engage inenter into any agreement with respect to any Company Takeover Proposal or (iii) directly or indirectly enter into, continue or otherwise participate in or continue any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party person any information or provide with respect to, any Company Takeover Proposal; provided, however, that, prior to any Third Party access obtaining the Company Stockholder Approval, the Company and its Representatives may, to the businessesextent required by the fiduciary obligations of the Company Board, propertiesas determined in good faith by the Company Board after consultation with outside counsel, assets in response to a Company Takeover Proposal that was not solicited by the Company and that did not otherwise result from a breach or personnel a deemed breach of this Section 5.02(a) and that the Company Board or the Special Committee determines, after consultation with its financial advisor and outside counsel, is reasonably likely to lead to a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations with such person and its Representatives regarding such Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 or any Company Subsidiary or otherwise, shall be deemed to abandon, terminate or fail to consummate be a breach of this Section 5.02(a) by the transactions contemplated by this Agreement; and
(ii) the Company. The Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, cease immediately cease all discussions and terminate negotiations regarding any existing discussions proposal that constitutes, or negotiations with any Third Party theretofore conducted by the Companymay reasonably be expected to lead to, its Subsidiaries or their respective Representatives with respect to an Acquisition a Company Takeover Proposal.
(b) Notwithstanding anything to Neither the contrary contained in this Agreement, if, at any time prior to Company Board nor the Acceptance Time, Special Committee shall (i) withdraw or modify in a manner adverse to Parent or Sub, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company receives a written Acquisition Proposal from a Third PartyBoard or the Special Committee of this Agreement or the Merger, (ii) such Acquisition approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover 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 who is not an officer or director of the Company), (iii) approve or recommend, or propose to approve or recommend, any Company Takeover Proposal. Notwithstanding the Board of Directors of foregoing, if the Company Board or any committee thereof the Special Committee determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition it is necessary to do so in order to comply with their fiduciary obligations, the Company Board or the Special Committee may withdraw or modify its approval or recommendation of the Merger and this Agreement.
(c) The Special Committee promptly shall advise Parent orally and in writing of any Company Takeover Proposal constitutes, made to the Special Committee or any inquiry with respect to or that could reasonably be expected to lead toto any Company Takeover Proposal and the identity of the person making any such Company Takeover Proposal or inquiry. The Special Committee shall (i) keep Parent fully informed of the status, a Superior Proposalincluding any change to the details, of any such Company Takeover Proposal or inquiry and (ivii) provide Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with any Company Takeover Proposal other than materials already provided by the Company to Parent.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that in no event shall the Company, the Company Board or any committee thereof take, agree or resolve to take any action prohibited by Section 5.02(b). Except as specifically permitted by, or as required in order to take any action specifically permitted by, this Agreement, including this Section 5.02(d), the proviso in Section 5.02(a) or the last sentence of Section 5.02(b) (but excluding the taking of any action pursuant to the resolutions of the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that appointing and specifying 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 Special Committee which is not otherwise cooperate with or assist or participate inspecifically permitted by, 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 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 required in order to clarify and understand take any action specifically permitted by, this Agreement), the terms and conditions of an Acquisition Proposal made by such Third Party so as Special Committee may not take, agree or resolve to determine whether such Acquisition Proposal constitutes, or could take any action that would 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 interfere with or delay (i) a copy the receipt of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and Company Stockholder Approval or (ii) the identity consummation 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)Merger.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Cruzan International, Inc.), Merger Agreement (Absolut Spirits CO INC)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and The Company agrees that, except as permitted by this provided in Section 5.38.5(c), until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, neither it nor shall the Company permit any of its Subsidiaries toshall, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toSubsidiaries' officers, directors, employees, agents and the Company shall not publicly propose torepresentatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) initiate, solicit or encourage, directly or indirectly indirectly, any inquiries or the making or implementation of any proposal or offer (other than including, without limitation, any proposal or offer to its stockholders) with respect to Parent and Purchasera merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or all or any significant portion of the equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being referred to herein as an "ALTERNATIVE PROPOSAL"), (A) solicit, initiate, facilitate or knowingly encourage engage in any inquiries, proposals or offers that constitutenegotiations concerning, or that would reasonably be expected to lead provide any information or data to, or have any discussions with, any person other than Purchaser, Sub or any affiliates thereof (a "THIRD PARTY") relating to an Acquisition Alternative Proposal, (B) engage inor release any Third Party from any obligations under any existing standstill agreement or arrangement, continue or otherwise participate in facilitate any effort or attempt to make or implement an Alternative Proposal; and (ii) it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle Parties conducted heretofore with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring of the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalforegoing.
(b) Notwithstanding anything in this Agreement to the contrary contained 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 an Alternative Proposal, (ii) file a Form 8-K with the SEC and issue a press release in accordance with Section 8.12 with respect to the entering into of this AgreementAgreement and the transactions contemplated hereby, including any exhibits deemed appropriate with respect to such Form 8-K and (iii) effect a Change in Company Recommendation, if, at any time prior to in the Acceptance Timecase of this clause (iii), (iA) the Company receives a bona fide, written Acquisition proposal or offer relating to an Alternative Proposal from by 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 who is not an officer or director of the Company), (iii) which the Board of Directors determines in good faith (after consulting the Board of Directors' independent legal and financial advisors) (I) is reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Shares than the Merger and the other transactions contemplated by this Agreement and (II) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal, any material contingencies and the capability of consummation) (any such proposal or offer being referred to herein as a "SUPERIOR PROPOSAL"), (B) the Company has furnished to Purchaser a Notice of Superior Proposal and (C) Purchaser does not, within 48 hours of Purchaser'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 any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, otherwise) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in its good faith after consultation with outside legal counsel that judgment to be at least as favorable to the failure to take the actions Company's stockholders as such Superior Proposal (any such proposal or offer being referred to in clause (A) or (B) below would constitute herein as a breach of "MATCHING OFFER"). The Company agrees that it will use commercially reasonable efforts to inform promptly its fiduciary duties to the shareholders directors, officers, key employees, agents and representatives 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 obligations undertaken 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 Parentthis Section 8.5. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (without any determination by the Board of Directors of the Company or any committee thereof or may effect a Change in Company Recommendation if in the good faith opinion of the Board of Directors of the Company, after consultation with counsel, the Company Financial Advisor or outside legal counsel) (x) following Recommendation is reasonably determined to be inconsistent with its fiduciary duties to the receipt of an Acquisition Proposal from a Third Party that did Company's stockholders under applicable law. Any such Change in Company Recommendation shall not result from constitute 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 Notwithstanding anything in this Agreement to the contrary, the Company may engage in discussions or negotiations with, or provide information to, any Person in response to a bona fide written Alternative Proposal by any Person not solicited by the Company in violation of this Section 8.5, if and after the date hereof, and except only to the extent expressly prohibited that, (i) such Alternative Proposal constitutes a Superior Proposal (provided that the Company, including its Board of Directors and any of its advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal, any material contingencies and the capability of consummation), (ii) prior to providing any non-public information or data to any Person in connection with an Alternative Proposal by a any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement containing confidentiality terms as least as stringent as those contained in place as the Confidentiality Agreement referred to in Section 8.7 (except that the confidentiality agreement to be entered into with a Third Party does not have to contain a limit on the time period during which information can be exchanged between the Company and the Third Party) and (iii) concurrently with the provision of the date hereofany non-public information or data to any Person in connection with an Alternative Proposal or entering into discussions or negotiations with any Person in connection with an Alternative Proposal, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent notifies Purchaser of any Acquisition such Alternative Proposal, which notification shall include (i) a copy any such non-public information requested from the Company, or any such discussions or negotiations sought to be initiated or continued with, any of the applicable written Acquisition Proposal (orCompany's representatives indicating, if oralin connection with such notice, the name of such Person and 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 developmentsinquiries, discussions proposals 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)offers.
(d) The Company agrees not to release or Nothing in this Section 8.5 shall permit the release of any Person from, or Company 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, terminate this Agreement other than pursuant to the extent the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawArticle X hereof.
Appears in 2 contracts
Sources: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur Immediately upon execution of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 shall (and shall cause its Representatives may (without any determination by the Board of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counselofficers, directors, employees, investment bankers, attorneys and other agents to) (x) following the receipt of an Acquisition Proposal from a Third Party that did not result from a breach of this Section 5.3 cease all discussions, negotiations, responses to inquiries (except for any immaterial breach of this Section 5.3 by a Representative of as set forth in 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 proviso to this Agreementsentence) and other communications relating to any potential business combination with all third parties who, including the specific provisions of this Section 5.3.
(c) From and after prior to the date hereof, and except to may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal with the extent expressly prohibited by a confidentiality agreement in place as of Company; PROVIDED that, if any such inquiries are made after the date hereof, the Company shall as promptly as practicable (respond by stating that it is a party to a binding agreement with Buyer 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 is prohibited thereby from further responding to 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)inquiries.
(db) The Prior to termination of this Agreement pursuant to Article VIII hereof, the Company agrees not to release and its Subsidiaries will not, nor shall the Company authorize or permit the release of any Person fromofficers, directors or employees of, or to waive any investment bankers, attorneys or permit the waiver other agents retained by or termination of any provision acting on behalf of, any confidentiality, “standstill” or similar agreement to which any of the Company or any of its Subsidiaries is a partyto, (i) initiate, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal that constitutes an Acquisition Proposal (as hereinafter defined), (ii) except as permitted below, engage or participate in negotiations or discussions with, or furnish any information or data to, or take any other than action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, or (iii) except as permitted below, enter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal. Notwithstanding anything to the extent -33- contrary contained in this Section 6.6 or in any other provision of this Agreement, prior to the 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 Board, 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 Securities Act), or "connected persons" (as defined in Section 26 of the Irish Companies Act, 1990), of any committee thereof person making an Acquisition Proposal ("DISINTERESTED DIRECTORS") determines in good faith, after consultation receiving advice from its financial advisor, that a 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 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 Financial Advisor Board's fiduciary duties under applicable law. In the event that the Company shall receive any Acquisition Proposal, it shall promptly (and 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 the terms of the preceding sentence. Nothing contained herein shall prevent the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any disclosure to the Company's shareholders if, in the good faith judgment of the Company Board, after receiving advice from reputable outside legal counselcounsel experienced in such matters (and the parties hereto agree that the law firms of ▇▇▇▇ and ▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are so experienced), such disclosure is required by applicable law. Without limiting the foregoing, the Company understands and agrees that failure any violation of the restrictions set forth in this Section 6.6(b) shall be deemed to do so would constitute be a breach of this Section 6.6(b) sufficient to enable Buyer to terminate this Agreement pursuant to Section 8.1(d)(i) hereof.
(c) For the directors’ fiduciary duties purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any proposal, whether in writing or otherwise, made by any person other than Buyer and its Subsidiaries to acquire "beneficial ownership" (as defined under Applicable LawRule 13(d) of the Exchange Act) of 20% or more of the assets of, or 20% or more of the outstanding capital stock of any of the Company or its Subsidiaries pursuant to a merger, consolidation, exchange of shares or other business combination, sale of shares of capital stock, sales of assets, tender offer or exchange offer or similar transaction involving the Company or its Subsidiaries.
Appears in 2 contracts
Sources: Acquisition Agreement (Adc Telecommunications Inc), Acquisition Agreement (Saville Systems PLC)
No Solicitation. (a) Subject to Sections 5.4(bUntil the earlier of (i) the Closing and (cii) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company its terms, Seller shall not, nor and shall the Company permit not authorize or cause any of its Subsidiaries other Person to, nor shall the Company authorize take any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect action to Parent and Purchaser), (A) solicit, initiate, facilitate or seek, knowingly encourage or respond to (other than clarifying a third party’s communication or informing a third party that Seller cannot enter into discussions or furnish information) any inquiriesinquiry, proposals proposal or offers that constituteoffer from, furnish any confidential information to, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with with, any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal third party (other than Purchaser or an Acceptable Confidentiality Agreementaffiliate thereof designated by Purchaser) regarding any acquisition of, any merger or consolidation with or involving, or any acquisition of all or any material portion of the assets of (A) Seller (which transaction would include any material portion of the assets of the Business) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(iiB) the Company shall, and Business or any material part thereof (a “Competing Transaction”); provided that any acquisition of Seller that contemplates a prior or contemporaneous disposition of the Business to Purchaser shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect not be deemed to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, be a Competing Transaction. If at any time prior to the Acceptance Timeearlier of (x) the Closing and (y) the termination of this Agreement pursuant to its terms, Seller is approached in any manner by a third party concerning a Competing Transaction (a “Competing Party”), Seller shall promptly inform Purchaser regarding such contact and furnish Purchaser with a copy of any inquiry or proposal, or, if not in writing, a description thereof, including the name of such Competing Party, and Seller shall keep Purchaser informed of the status and details of any future notices, requests, correspondence or communications related thereto.
(b) Until the earlier of (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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) Closing and (ii) the identity termination of the Third Party making such Acquisition Proposal. The Company this Agreement pursuant to its terms, Purchaser shall thereafter keep Parent reasonably informed on not, and shall not authorize or cause any other Person to, take any action to solicit, initiate, seek, knowingly encourage or respond to (other than clarifying a reasonably current basis of the status of third party’s communication or informing a third party that Purchaser cannot enter into discussions or furnish information) any material developmentsinquiry, proposal or offer from, furnish any confidential information to, or participate in any discussions or negotiations with, any third party regarding any such Acquisition Proposalacquisition of Purchaser or any material part thereof, and 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 material terms and conditions thereof (including any change in price or form of consideration or other material amendment theretoNASDAQ Marketplace Rules), including by providing a copy or any acquisition of all or any material documentation relating thereto portion of the assets of Purchaser; provided that is exchanged between the Third Party (foregoing shall not apply to discussions or negotiations, not in violation of Purchaser’s confidentiality obligations, that Purchaser or its Representativesrepresentatives may have with 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) 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 hereofNASDAQ Marketplace Rules).
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Smith Micro Software Inc), Asset Purchase Agreement (Pc Tel Inc)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by this Section 5.3, after the date hereof until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1Agreement, the Company and its affiliates shall not, and shall instruct the Company Representatives not to:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage (including by way of furnishing nonpublic information or assistance), or take any inquiriesother action to facilitate, any inquiries or proposals or offers from any person that constitute, or that would may reasonably be expected to lead to, an Acquisition Proposalacquisition, (B) engage inpurchase, continue merger, consolidation, share exchange, recapitalization, business combination or otherwise participate in other similar transaction involving any discussions material portion of the assets or negotiations with any Third Party regarding an Acquisition Proposalsecurities of, any merger, consolidation or business combination with, or furnish any public announcement of a proposal, plan, or intention to do any Third Party information or provide to any Third Party access to of the businessesforegoing by, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for Subsidiaries (such transactions being referred to herein as "Acquisition Proposals"); except that none of the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle foregoing restrictions shall apply with respect to persons to whom the Company or a Company Representative has already provided, within the three months prior to the date of this Agreement, non-public written information about the Company to facilitate an Acquisition Proposal Proposal;
(other than ii) enter into, maintain, or continue discussions or negotiations with any person in furtherance of such inquiries or to obtain an Acceptable Confidentiality Acquisition Proposal; except that none of the foregoing restrictions shall apply with respect to persons to whom the Company or a Company Representative has already provided, within the three months prior to the date of this Agreement, non-public written information about the Company to facilitate an Acquisition Proposal;
(iii) agree to or endorse any Acquisition Proposal;
(iv) enter into any agreement, contract arrangement or commitment understanding requiring the Company it to abandon, terminate or fail to consummate the transactions Merger or any other transaction contemplated by this Agreement; and, or
(v) authorize or permit the Company Representatives to take any such action except to the extent that such action may be taken under clause (i) or (ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company5.10(a), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 prior to the approval of the Merger by the shareholders of the Company nothing in this Agreement shall prohibit the Company Board or a special committee of the Company Board (1the "Special Committee") will notfrom (A) furnishing information to, and will not permit engaging in discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire the Company and/or 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 a merger, consolidation, share exchange, tender offer or other similar transaction, but only to Parent any material non-public information concerning the extent that the Company Board or its Subsidiaries or access the Special Committee determines in good faith by a majority vote, based upon advice from independent legal counsel (who may be the Company's regularly engaged outside legal counsel), a description of which is provided to ICS, that failure to furnish such Third Party which was not previously provided information or engage in such discussions or negotiations with such person or entity would be reasonably likely to Parent. Notwithstanding anything constitute a breach of the fiduciary duties to shareholders of the contrary contained Company Board or the Special Committee under applicable law (assuming for such purpose that fiduciary duties are owed only to shareholders), and such a proposal is, in this Agreement, the opinion of the Investment Banks more favorable to the Company and its Representatives may (without any determination by the Board of Directors shareholders 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 financial point of view then than the transactions contemplated by this Section 5.3 Agreement (except for including 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 adjustment to clarify and understand the terms and conditions of an such transactions proposed by ICS in response to such Acquisition Proposal made by such Third Party so as to determine whether Proposal) (any such Acquisition Proposal constitutessatisfying such criteria, a "Higher Offer"), provided that, prior to accepting the Higher Offer, the Company Board notifies ICS of its intentions and obtains an executed confidentiality agreement from the appropriate parties substantially similar to the Confidentiality Agreement, (B) failing to make or withdrawing or modifying its recommendation referred to in Section 5.13 hereof if the Company Board, after consultation with independent legal counsel (who may be the Company's regularly engaged outside legal counsel), determines in good faith that such action is consistent with the Company Board's fiduciary duties to shareholders under applicable law, provided that ICS is given five days' prior written notice of its intentions to do so, and (C) disclosing to the Company's shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer, or could reasonably taking any other legally required action (including, without limitation, the making of public disclosure as may be expected to lead tonecessary or advisable under applicable securities laws); and, provided further, that the Company Board's or the Special Committee's exercise of its rights under clause (A), (B) or (C) above shall not constitute a Superior Proposal and/or (y) direct any Persons to breach by the Company of this Agreement, including the specific provisions of this Section 5.3.
(cb) From and after the date hereof, and except to the extent expressly prohibited by a confidentiality agreement in place as The Company will promptly notify ICS of the date hereof, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent receipt 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) proposal and, if not prohibited by the terms of such proposal, the identity of the Third Party person making it. The Company will have no obligation to notify ICS of any change to or modification of such Acquisition Proposal or the terms and conditions thereof, but shall provide ICS with a reasonable opportunity to increase the Merger Consideration in response to 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as expressly permitted by this Section 5.3, until from and after the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) date hereof, the Company shall, and shall not, nor shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s and Representatives to, (x) promptly cease and the Company shall not publicly propose to, directly or indirectly (other than with respect cause to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in terminated any discussions or negotiations with any Third Party regarding that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or furnish destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the existence of the provisions contained in this Section 5.3), except that, the Company or may ascertain facts from any of its Subsidiaries, in each case Person making an Acquisition Proposal for the purpose of encouraging the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or facilitating its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (CD) enter into any letter of intent, agreement, contract, commitment intent or agreement in principle with respect or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality AgreementAgreement in accordance with Section 5.3(b)); or (E) reimburse or enter into agree to reimburse the expenses of any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
other Person (ii) the Company shall, and shall cause its Subsidiaries to, and shall direct other than the Company’s and its Subsidiaries’ Representatives toRepresentatives) in connection with an Acquisition Proposal or any inquiry, immediately cease and terminate any existing discussions discussion, offer or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.3(a), if, if at any time following the date hereof and prior to the Acceptance Time, Time (i) the Company receives has received a bona fide written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach of this Section 5.3 (except for in any immaterial breach of this Section 5.3 material respect by a Representative of the Company who is not an officer or director of the Company), and (iii) the Company Board of Directors of the Company (or any a duly authorized committee thereof thereof) determines in good faith, after consultation with the Company Financial Advisor its financial advisors and outside legal counsel, based on information then available, that such Acquisition Proposal constitutes, constitutes or could would reasonably be expected to lead to, to a Superior Proposal, and (iv) 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 Proposal, its representatives and afford such Third Party access potential sources of financing pursuant to the businesses, properties, assets and personnel of the Company and its Subsidiaries (but only pursuant to) one or more Acceptable Confidentiality Agreements 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 negotiationsProposal; 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 provided or access made available to any Third Party shall, to the extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub as promptly as reasonably practicable (and in no event later than twenty four (24) hours) after it is provided or made available to such Third Party which was not previously provided to Parent. Notwithstanding anything Party, except to the contrary contained in this Agreement, the Company and its Representatives may (without extent providing Parent or Merger Sub with such information would violate any determination by the Board 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.applicable Law. 42
(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-twenty four (24) hours) notify Parent of in the event that the Company receives any Acquisition Proposal, which notification . The Company shall include notify Parent promptly (iand in any event within twenty four (24) hours) of the identity of such Person and provide to Parent a copy of the applicable written such Acquisition Proposal (or, where no such copy is available, a reasonable description 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 oralthe Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(b).
(d) Notwithstanding anything to the contrary contained in Section 5.3(a), if the Company has received a bona fide written Acquisition Proposal that the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal, the Company Board may at any time prior to the Acceptance Time, (i) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement pursuant to Section 7.1(f), in either case subject to the requirements of this Section 5.3(d). The Company shall not be entitled to effect a Change of Board Recommendation pursuant to this Section 5.3(d) or terminate this Agreement pursuant to Section 7.1(f) unless the Company shall have provided to Parent at least three (3) Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice shall specify the material terms and conditions of such Acquisition Proposal, and shall have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Acquisition Proposal, and:
(i) during the Notice Period, if requested by Parent, the Company shall have, and shall have caused its legal and financial advisors to have, engaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
(ii) the Company Board shall have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (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 that the Superior Proposal would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect. In the event of any material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal, 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(d) with respect to such new written notice, except that the Notice Period shall be two (2) Business Days with respect to any such revised Superior Proposal.
(e) Notwithstanding anything to the contrary contained in Section 5.3(a), the Company Board (or a duly authorized committee thereof) may at any time prior to the Acceptance Time, effect a Change of Board Recommendation if (i) the Company Board (or a duly authorized committee thereof) determines that an Intervening Event has occurred and is continuing 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 Board (or its Representativesa duly authorized committee thereof) 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 Financial Advisor and outside legal counsel, that the failure to do so effect a Change of Board Recommendation in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company, but such Change of Board Recommendation shall not occur until a time that is after the third Business Day following Parent’s receipt of written notice from the Company advising Parent of the material facts relating to such Intervening Event and stating that it intends to make a Change of Board Recommendation and provided that (A) during such three (3) Business Day period the Company has negotiated in good faith with Parent to the extent Parent wishes to negotiate to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with the Company Board Recommendation and (B) at the end of such three (3) Business Day period, the Company Board maintains its determination described in this clause (ii) (after taking into account any adjustments offered in writing by Parent to the material terms and conditions of this Agreement)
(f) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company 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) making any disclosure to the stockholders of the Company if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties 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 the Exchange Act, shall not constitute a breach Change of the directors’ fiduciary duties under Applicable LawBoard Recommendation.
(g) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Iac/Interactivecorp), Merger Agreement (Iac/Interactivecorp)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by From the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company Effective Time and (ii) the date of the termination of the Merger Agreement, each Shareholder agrees that it shall not, nor and shall the Company permit any cause each of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toAffiliates, and the Company shall its and their respective Representatives not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate initiate or knowingly encourage the making of any inquiries, proposals proposal that constitutes or offers that constitute, or that would is reasonably be expected likely to lead to, an Acquisition to a Takeover Proposal, (B) engage inenter into, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party information or provide to person any Third Party access to the businesses, properties, assets or personnel of the Company Company’s or any of its Subsidiaries’ confidential information with respect to, in each case for the purpose of encouraging or facilitating an Acquisition Proposal any Takeover Proposal, or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle Takeover Proposal Documentation with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreementa Takeover Proposal. Notwithstanding the foregoing, contract or commitment requiring if the Company Board of Directors has determined, after consultation with its financial advisor and outside counsel, that an unsolicited bona fide written Takeover Proposal constitutes or would reasonably be expected to abandonlead to a Superior Proposal, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) if the Company shallis participating in discussions and negotiations with, or furnishing information to the person making such Takeover Proposal pursuant to and in compliance with Section 6.06 of the Merger Agreement, then, notwithstanding clauses (A) and (B) above, such Shareholder, its Affiliates and their respective Representatives may also participate in discussions and negotiations with, and shall cause its Subsidiaries furnish information to, the person making such Takeover Proposal at the request and shall direct direction of the Company’s Special Committee of the Company Board of Directors. Each Shareholder and its Subsidiaries’ Representatives toAffiliates, and its and their respective Representatives, shall immediately cease and terminate any existing cause to be terminated all discussions or negotiations with any Third Party theretofore person conducted by the Company, its Subsidiaries or their respective Representatives heretofore (other than with Parent) with respect to an Acquisition any Takeover Proposal, except to the extent any discussions or negotiations by and among the parties to the A&R SSCSA are required pursuant to the terms of such agreement as in effect as of the date hereof.
(b) Notwithstanding anything to For the contrary contained in this Agreementavoidance of doubt, if, at any time prior to for the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach purposes of this Section 5.3 4.04, any officer, director, employee, agent or advisor of the Company (except for any immaterial breach of this Section 5.3 by in each case, in their capacities as such) shall be deemed not to be a Representative of the Company who is not an officer such Shareholder (other than such directors as are party to this Agreement or director a trustee of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 party 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Voting and Support Agreement (Shapiro Steven A.), Voting and Support Agreement (Protective Insurance Corp)
No Solicitation. (a) Subject to Sections Section 5.4(b) ), from and (c) after the date of this Agreement through and except as permitted by this Section 5.3, until including the earlier to occur of the Acceptance Effective Time or and the termination of this Agreement pursuant to Section 8.1:
(i) Article IX, the Company shall not, nor and shall the Company not authorize or permit any of its Subsidiaries to, nor shall the other Acquired Company authorize any of its Representatives or any Representatives of its Subsidiary’s Representatives to, and the any Acquired Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate propose, induce or knowingly encourage the making or submission of any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (Bii) engage enter into, participate in, continue engage in or otherwise participate in any renew discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal Person (other than an Acceptable Confidentiality Agreement) or enter into any agreementBuyer, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shall, Acquisition Corporation and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives Representatives) with respect to an Acquisition Proposal, (iii) provide any non-public information regarding any of the Acquired Companies to any Person (other than Buyer, Acquisition Corporation and their respective Representatives) in connection with or in response to an Acquisition Proposal or (iv) enter into, or authorize the Company or any other Acquired Company to enter into, any letter of intent, memorandum of understanding, agreement or understanding (whether written, oral, binding or nonbinding) of any kind providing for, or deliberately intended to facilitate an Acquisition Transaction.
(b) Notwithstanding anything any provision to the contrary contained in Section 5.4(a), but subject to the limitations set forth in this AgreementSection 5.4(b) and in Section 5.4(c), if, at any time prior to the Acceptance Time, (i) receipt of the Company receives Stockholder Approval, the Company may, in response to a written bona fide unsolicited Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal which did not result from a breach of this Section 5.3 (except for any immaterial breach 5.4(a) and which the board of this Section 5.3 by a Representative directors of the Company who is not an officer or director of the Company)determines, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure and any other advisors, is reasonably expected to take the actions referred lead to in clause a Superior Proposal (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 (Ai) furnish non-public information and data with respect to the Company and its Subsidiaries Acquired Companies to the Third Party Person making such bona fide unsolicited Acquisition Proposal and afford such Third Party access its Representatives pursuant to the businesses, properties, assets and personnel a customary confidentiality agreement not less restrictive of the Company and its Subsidiaries other party than the Confidentiality Agreement and (Bii) enter into, maintain and participate in discussions or negotiations with the Third Party making such Person and its Representatives regarding any Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiationswhich is reasonably expected to result in a Superior Proposal; provided, however, that the Company (1) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish any shall promptly provide to Buyer all non-public information except pursuant that is provided to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning the Company Person or its Subsidiaries or access provided to Representatives making such Third Party Acquisition Proposal which was not previously provided to Parent. Notwithstanding anything Buyer.
(c) The Company shall promptly (and in no event later than twenty-four (24) hours after receipt of any Acquisition Proposal, any inquiry, indication of interest or any request for non-public information that could lead to an Acquisition Proposal) (i) advise Buyer orally and in writing of any Acquisition Proposal, any inquiry, indication of interest or any request for non-public information that could lead to an Acquisition Proposal (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 during the period from the date of this Agreement and prior to the contrary contained receipt of the Company Stockholder Approval and (ii) deliver a copy of any such Acquisition Proposal made in writing or a summary of the terms of any such Acquisition Proposal not made in writing. The Company shall give Buyer prior written notice (which prior written notice shall be given at least twelve (12) hours in advance) of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information or afford access to any Person making a unsolicited Acquisition Proposal. The Company shall keep Buyer fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest, or request and any developments, discussions regarding any Acquisition Proposal and modification or proposed modification thereto. The Company agrees that it and each of the other Acquired Companies shall not enter into any agreement with any Person which prohibits the Company or any of the other Acquired Companies from complying with its obligations under this AgreementSection 5.4.
(d) Subject to Sections 5.4(e) through 5.4(g), (i) the Information Statement shall include a statement to the effect that the board of directors of the Company recommends that the Stockholders consent to the adoption of this Agreement and the approval of the Merger (such recommendation, the “Company Board Recommendation”) and its Representatives may (without any determination by ii) the Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Buyer, and no resolution of Directors the board of directors of the Company or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Buyer shall be adopted (each, a “Recommendation Change”).
(e) Notwithstanding the foregoing or any other provision contained herein to the contrary, at any time prior to the receipt of the Company Stockholder Approval, subject to compliance with Section 5.4(f) and Section 9.1(e), the board of directors of the Company may effect a Recommendation Change and the Company may terminate this Agreement pursuant to Section 9.1(e) in order to enter into a definitive agreement providing for the implementation of a Superior Proposal if the Company has received an Acquisition Proposal that the board of directors of the Company determines, in good faith by majority vote (after consultation with the Company Financial Advisor or its financial advisors and outside legal counsel) (x) following ), constitutes a Superior Proposal and the receipt failure to take such action would be reasonably likely to be inconsistent with the directors’ exercise of an Acquisition Proposal from a Third Party their fiduciary obligations to the stockholders of the Company under applicable Legal Requirements; provided, that did the Company has not taken any deliberate action or omitted to take any action that the Company knows is or would reasonably be expected to result from in, or intends such action or omission to be or reasonably expects such action or omission to result in, 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 5.35.4.
(cf) From and after the date hereofPrior to taking any action permitted by Section 5.4(e), and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof, (i) the Company shall as promptly as practicable give Buyer at least three (and in 3) Business Days’ prior written notice of its intention to take such action (which notice shall specify the reasons for 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, Recommendation Change or the material terms and conditions of any such Acquisition Superior Proposal) and no later than the time of such notice, provide Buyer an unredacted copy of the relevant proposed transaction agreement and other material documents contemplated with or by the party making such proposal or Superior Proposal, (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 developmentsif requested by Buyer, 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 and its Representatives shall negotiate in good faith with Buyer during the notice period described in clause (or its Representativesi) within twenty four (24) hours after receipt thereof (except above to enable the Company to propose changes to the extent expressly prohibited by a confidentiality agreement in place as terms of this Agreement intended to eliminate the date hereof).
(d) The Company agrees not to release or permit need for the release board 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 directors of the Company to effect a Recommendation Change or any to cause such Superior Proposal no longer to constitute a Superior Proposal, (iii) the board of its Subsidiaries is a party, other than to the extent the Board of Directors directors of the Company or any committee thereof determines shall have considered in good faith, faith (after consultation with the Company Financial Advisor its financial advisors and outside legal counsel) any changes to this Agreement proposed by Buyer and determined that such Superior Proposal would continue to require a Recommendation Change if such changes were to be given effect, and (iv) in the event of any change to any of the material terms of such Superior Proposal, the Company shall have delivered to Buyer an additional notice and a summary of the relevant proposed transaction agreement and other material documents and a new three (3) Business Day notice period shall commence during which time this Section 5.4(e) shall apply.
(g) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit the board of directors of the Company from making any disclosure to the stockholders of the Company that failure the board of directors of the Company determines to do so make in good faith (after consultation with its outside legal counsel) in order to fulfill its fiduciary duties or satisfy applicable state or federal securities Legal Requirements.
(h) The parties hereto agree that irreparable damage would constitute occur in the event that the provisions of this Section 5.4 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties that Buyer shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 5.4 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Buyer may be entitled at law or in equity. Without limiting the foregoing, it is understood that any violation of the restrictions set forth above by any Representative or Affiliate of any of the Acquired Companies shall be deemed to be a breach of this Section 5.4 by the directors’ fiduciary duties under Applicable LawAcquired Companies.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verisk Analytics, Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) Neither the Company shall notnor any of its subsidiaries shall, nor shall the Company or any of its subsidiaries authorize or permit any of its Subsidiaries toor their officers, nor shall the Company authorize any of its Representatives directors, employees, investment bankers, attorneys, accountants, consultants or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose other agents or advisors to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage any inquiries, proposals Acquisition Proposal (as defined below) or offers any inquiries or the making of any proposal that constitute, constitutes or that would could reasonably be expected to lead to, to an Acquisition Proposal, (Bii) engage inenter into, continue or otherwise participate in any discussions or negotiations with with, furnish any Third Party regarding an Acquisition Proposal, information relating to the Company or furnish to any Third Party information of its subsidiaries or provide to any Third Party afford access to the businessesbusiness, properties, assets assets, books or personnel records of the Company or any of its Subsidiariessubsidiaries to, otherwise cooperate in each case for the purpose of encouraging any way with, or facilitating knowingly assist, participate in, facilitate or encourage any effort by any third party to do or seek to make, or that has made an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (Civ) enter into any letter of intent, agreement, intent or similar document or any 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 contemplating or otherwise relating to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, ifthe Board of Directors of the Company, at any time prior to the Acceptance Timedirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any third party that, subject to the Company receives Company's compliance with Section 6.3(a), has made (and not withdrawn) a written bona fide 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 who is not an officer or director of the Company), (iii) that the Board of Directors of the Company or any committee thereof reasonably determines in good faith, (after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, Company's financial advisor) constitutes a Superior Proposal, (ii) furnish to such third party nonpublic information relating to the Company or any of its subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, (iii) take and disclose to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise make disclosure to them, (iv) following receipt of such an Acquisition Proposal, withdraw, modify in a manner adverse to Parent, or fail to make the Recommendations, or (v) take any action ordered to be taken by the Company by any court of competent jurisdiction if, in each case (1) neither the Company nor any representative of Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 6.3, (2) the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel counsel) that the failure to take the actions referred such action would be reasonably likely to result in clause (A) or (B) below would constitute a breach of its fiduciary duties obligations to the shareholders Company's stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such person or group, the Company gives Parent written notice of the Company under Applicable Law, then identity of such person or group and all of the Company may (A) furnish information material terms and data with respect to the Company and its Subsidiaries to the Third Party making conditions of such Acquisition Proposal and afford of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Third Party access person or group, and the Company receives from such person or group an executed confidentiality agreement containing terms at least as restrictive with regard to the businessesCompany's confidential information as the Confidentiality Agreement (as defined in Section 6.6), properties(4) gives Parent prompt advance notice of its intent to furnish such nonpublic information or enter into such discussions (which notice shall in no event be given less than one (1) business day prior to furnishing such information or entering into such discussions), assets and personnel of (5) contemporaneously with furnishing any such nonpublic information to such person or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). The Company and its Subsidiaries subsidiaries will immediately cease any and (B) enter intoall existing activities, maintain and participate in discussions or negotiations with the Third Party making such any parties conducted heretofore with respect to any Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate inProposal, or facilitate, and shall use its reasonable efforts to cause any such discussions or negotiations; provided, however, that parties in possession of confidential information about the Company (1) will not, and will not permit its Subsidiaries that was furnished by 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 on behalf of the Company to return or its Subsidiaries destroy all such information in the possession of any such party or access provided to in the possession of any agent or advisor of any such Third Party which was not previously provided to Parentparty. Notwithstanding anything to Without limiting the contrary contained foregoing, it is understood that any violation of the restrictions set forth in this Agreementthe preceding two sentences by any officer, the Company and its Representatives may (without any determination by the Board of Directors director or employee of the Company or any committee thereof of its subsidiaries or consultation with any investment banker, attorney or other advisor or representative of the 50 Company Financial Advisor or outside legal counsel) (x) following the receipt any of an Acquisition Proposal from a Third Party that did not result from its subsidiaries shall be deemed to be a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 6.3 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 In addition to the extent expressly prohibited by a confidentiality agreement in place as obligations of the date hereofCompany set forth in paragraph (a) of this Section 6.3, the Company shall as promptly as practicable (advise Parent orally and in any event within twenty-four (24) hours) notify Parent writing of any Acquisition Proposal, or any inquiry with respect to or which notification shall include (i) a copy of the applicable written Company reasonably should believe would lead to any Acquisition Proposal (or, if oralProposal, the material terms and conditions of such Acquisition Proposal) Proposal or inquiry, and (ii) the identity of the Third Party person or group making any such Acquisition ProposalProposal or inquiry. The Company shall thereafter will keep Parent reasonably informed on a reasonably current basis of the status promptly of any material developments, discussions or negotiations regarding amendments of any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price Proposal 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)inquiry.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) after the date hereof and except as permitted by this Section 5.3, continuing until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) Article IX, the Company will not, and shall notnot permit any of its or any of its 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, solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action intended to facilitate, the making of any proposal that constitutes a Takeover Proposal from any Person, or engage in or continue discussions or negotiations with any third party relating to a Takeover Proposal by or involving such third party, nor shall the Company permit approve the taking of any action prohibited by the provisions of this sentence above. The Company agrees that it will, and will cause its Subsidiaries officers, directors and representatives to, nor shall immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the Company authorize date of this Agreement with any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than parties conducted heretofore with respect to Parent any Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and Purchaser)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 Recommendation during the Window Period, if and only to the extent that, in any such case as is referred to in clause (iii) (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition 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) engage inthe Company has furnished to Parent a Notice of Superior Proposal in accordance with Section 7.9(b)(iii) and (C) Parent does not, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition within 48 hours of Parent's receipt of the Notice of Superior Proposal, or furnish to any Third Party information or provide to any Third Party access deliver to the businessesCompany a binding, properties, assets or personnel written offer to acquire 100% of the equity securities of the Company (by merger or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (Cotherwise) 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in its good faith judgment (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 receipt of written advice of its fiduciary duties financial advisor of nationally recognized reputation) to be at least as favorable to the shareholders 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 Company under Applicable Law, then obligations undertaken in this Section 7.9.
(b) During 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 notWindow Period, and will not permit its Subsidiaries or its or their Representatives to, furnish at 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 time thereafter if the Board of Directors of the Company or any committee thereof or consultation with shall have effected a Change in Company Recommendation, the Company Financial Advisor may engage in discussions or outside legal counsel) (x) following negotiations with, or provide information to, any Person in response to a bona fide written Takeover Proposal by any such Person not solicited by the receipt of an Acquisition Proposal from a Third Party that did not result from a breach Company in violation of this Section 5.3 7.9, if and only to the extent that, (except for i) such Takeover Proposal constitutes a Superior Proposal, (ii) prior to providing any immaterial breach non-public information or data to any person in connection with a Takeover Proposal by any such Person, the Company's Board of this Directors receives from such Person an executed confidentiality agreement containing confidentiality terms as least as stringent as those contained in the Confidentiality Agreement referred to in Section 5.3 by 7.2 and (iii) at least 48 hours prior to providing any non-public information or data to any Person in connection with a Representative of Takeover Proposal or entering into discussions or negotiations with any Person in connection with a Takeover Proposal, the Company who is not an officer notifies Parent of such Takeover Proposal, any such non-public information requested from the Company, or director any such discussions or negotiations sought to be initiated or continued with, any of the Company)'s representatives indicating, contact in connection with 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 hereofnotice, the Company shall as promptly as practicable (name of such Person 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 any 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 prior to the earlier of (x) the expiration of the Window Period and (y) such Acquisition Proposaltime as this Agreement becomes available on the SEC's ▇▇▇▇▇ system, 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) and Nothing in this Section 7.9 shall (i) permit the Company to terminate this Agreement or (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 affect 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 obligation 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Teletech Holdings Inc), Merger Agreement (Newgen Results Corp)
No Solicitation. (a) Subject The Company has ceased and caused --------------- to Sections 5.4(b) be terminated all existing discussions, negotiations and (c) and except communications with any Persons with respect to any Acquisition Proposal. Except as permitted by provided in Section 5.3(b), from the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) or the Effective Time, the Company shall not, nor not and shall the Company not authorize or permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall use its best efforts to cause its Other Employees not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, facilitate solicit or knowingly encourage any inquiries, proposals or offers that constituteencourage, or that would knowingly take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably be expected likely to lead to, an to any Acquisition Proposal, (Bii) engage in, continue or otherwise participate in enter into any discussions or negotiations agreement with respect to any Third Party regarding an Acquisition Proposal, or furnish (iii) in the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any information or data concerning the Company's business, properties or assets to, any Person (other than Parent or any of its affiliates or representatives) relating to any Third Party information Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's Representatives, whether or provide not such Representative is so authorized and whether or not such Representative is purporting to any Third Party access to the businesses, properties, assets or personnel act on behalf of the Company or any of its Subsidiariesotherwise, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect shall be deemed to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from be a breach of this Section 5.3 (except for any immaterial breach of Agreement by the Company. Notwithstanding the foregoing, nothing contained in this Section 5.3 by a Representative of or any other provision hereof shall prohibit the Company who is not an officer or director of the Company), (iii) the Company Board of Directors of from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Company or any committee thereof determines in good faithExchange Act, after consultation with the Company Financial Advisor including taking and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 disclosing to the shareholders of the Company under Applicable Law, then the Company may (A) furnish information and data Company's stockholders its position 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 tender 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 exchange offer by a third party pursuant to an Acceptable Confidentiality Agreement Rules 14d-9 and (2) will promptly provide to Parent any material non-public information concerning 14e-2 promulgated under 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 AgreementExchange Act, the Company and its Representatives may (without any determination by the Board 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.50
Appears in 2 contracts
Sources: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
No Solicitation. (a) Subject to Sections 5.4(b) The Company represents and (c) warrants to, and except as permitted covenants and agrees with, Parent and Purchaser that neither the Company nor any of its subsidiaries has any agreement, arrangement or understanding with any potential third party acquiror that, directly or indirectly, would be violated, or require any payments, by this Section 5.3, until the earlier to occur reason of the Acceptance Time or the termination execution, delivery and/or consummation of this Agreement pursuant Agreement. The Company shall, and it shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person other than Parent or Purchaser (a "Third Party") heretofore conducted with respect to Section 8.1:
any Acquisition Transaction (i) the as hereinafter defined). The Company shall not, nor and it shall the Company permit any of cause its Subsidiaries tosubsidiaries and its and their officers, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives todirectors, employees, investment bankers, attorneys and the Company shall other agents and representatives not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Aw) solicit, initiate, continue, facilitate or knowingly encourage (including by way of furnishing or disclosing non-public information) any inquiries, proposals or offers that constitutefrom any Third Party with respect to, or that would could reasonably be expected to lead to, an Acquisition Proposal, any acquisition or purchase of a material portion of the assets (Bother than in the ordinary course of business) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalbusiness of, or furnish to any Third Party information significant equity interest in (including by way of a tender offer), or provide to any Third Party access to the businessesmerger, propertiesconsolidation or business combination with, assets or personnel of any recapitalization or restructuring, or any similar transaction involving, the Company or any of its Subsidiariessubsidiaries (the foregoing being referred to collectively as an "Acquisition Transaction"), in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (Cx) enter into negotiate, explore or otherwise communicate in any letter of intent, agreement, contract, commitment or agreement in principle way with any Third Party with respect to an any Acquisition Proposal Transaction, (other than an Acceptable Confidentiality Agreementy) enter into, approve or enter into recommend any agreement, contract arrangement or commitment understanding requiring the Company to abandon, terminate or fail to consummate the transactions Offer and/or the Merger or any other transaction contemplated hereby, or (z) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company Board of the Offer, the Merger or this Agreement; and
(ii) provided, however, that nothing herein shall prevent the Company shallBoard from taking, and shall cause its Subsidiaries to, and shall direct disclosing to the Company’s 's shareholders, a position contemplated by Rules 14d-9 and its Subsidiaries’ Representatives to14e-2 promulgated under the Exchange Act with respect to any tender offer. The Company will promptly notify Parent of the receipt of any proposal relating to an Acquisition Transaction. Notwithstanding anything to the contrary in the foregoing, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the CompanyCompany may, its Subsidiaries or their respective Representatives in response to an unsolicited written proposal with respect to an Acquisition Proposal.
Transaction involving the acquisition of all of the Shares (bor all or substantially all of the assets of the Company and its subsidiaries) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, from a Third Party (i) the Company receives a written Acquisition Proposal from a furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if (iia) such Acquisition Proposal did not result from a breach of this Section 5.3 after being advised (except for any immaterial breach of this Section 5.3 x) by a Representative of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation its outside counsel with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected respect to lead to, a Superior Proposal, its fiduciary obligations and (ivy) with respect to the financial terms of any such proposed Acquisition Transaction, the Board of Directors of the Company determines in good faith after consultation with outside legal counsel by a majority vote that taking such action is necessary in the failure to take the actions referred to in clause (A) or (B) below would constitute a breach exercise of its fiduciary duties to obligations under applicable law (the shareholders of the Company under Applicable Law, then the Company may (A) furnish information and data proposal with respect to an Acquisition Transaction meeting the requirements of this clause (a), a "Superior Proposal") and (b) prior to furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such Third Party, the Company receives from such Third Party an executed confidentiality agreement (which the Company is hereby expressly permitted to negotiate with such party) with terms no less favorable in the aggregate to Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not provide for any exclusive right to negotiate with the Company or any payments by the Company and need not contain any "standstill" or similar provisions. In addition, the Company Board may approve or recommend (and, in connection therewith withdraw or modify its Subsidiaries to approval or recommendation of the Third Party making such Acquisition Offer, this Agreement or the Merger) a Superior Proposal and afford such Third Party access may terminate this Agreement solely to the businesses, properties, assets and personnel of the Company and its Subsidiaries and (B) enter into, maintain and participate in discussions or negotiations into a definitive agreement with the Third Party making such Acquisition respect to a Superior 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 shall not, and will shall cause its affiliates not permit its Subsidiaries or its or their Representatives to, furnish any non-public information except pursuant enter into a definitive agreement with respect 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 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 (yunless the Company concurrently terminates this Agreement in accordance with the terms hereof and pays any Termination Fee required under Section 8.3(b) direct and agrees to pay any Persons to this Agreement, including the specific provisions of this other amounts required under such Section 5.38.3(b).
(cb) 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 The Company shall as promptly as practicable (and but in any event within twenty-four (24one business day of the Company becoming aware of same) hours) notify advise Parent of the receipt by the Company, any of its subsidiaries or any of the Company's bankers, attorneys or other agents or representatives of any written inquiries or proposals relating to an Acquisition ProposalTransaction and any actions taken pursuant to Section 6.10(a), which notification and shall include promptly (ibut in any event within one business day of the Company becoming aware of same) provide Parent with a copy of any such written inquiry or proposal. The Company shall keep Parent reasonably informed of the applicable written status and content of and material developments (including the calling of meetings of the Company Board to take action with respect to such Acquisition Transaction) with respect to any discussions regarding any Acquisition Transaction with a Third Party. The Company agrees that it will not enter into any agreement with respect to a Superior Proposal (or, if oralunless and until Parent has been given notice of the identity of the parties making such Superior Proposal, the material terms thereof and conditions of such Acquisition Proposal) and (ii) material developments referred to in 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 preceding sentence at least two business days prior to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)entering into such agreement.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company authorize any of its Representatives or any of its Subsidiary’s Representatives Company Subsidiary to, and the Company shall not publicly propose to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Company Takeover Proposal (other than as defined in Section 5.02(e)), (ii) enter into any agreement with respect to Parent and Purchaser), any Company Takeover Proposal or (Aiii) solicit, initiate, facilitate directly or knowingly encourage indirectly participate in any inquiries, proposals discussions or offers that constitutenegotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition any Company Takeover Proposal; provided, (B) engage inhowever, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish that prior to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel receipt of the Company or any of its SubsidiariesStockholder Approval, the Company may, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect response to an Acquisition unsolicited bona fide Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal which 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 5.02(a) and which the Company who is not an officer or director of the Company)Board determines, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor outside counsel and outside legal counselfinancial advisors, that such Acquisition Proposal constitutes, or could may reasonably be expected to lead to, to a Superior ProposalCompany Proposal (as defined in Section 5.02(e)), and subject to compliance with Section 5.02(c), (iv) 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 (Ax) furnish information and data with respect to the Company to the person making such Company Takeover Proposal and its Subsidiaries Representatives pursuant to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel a customary confidentiality agreement not less restrictive of the Company and its Subsidiaries other party than the Confidentiality Agreement (as defined in Section 6.02) and (By) 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 person and its Representatives may (without regarding any determination Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by the Board of Directors any Representative of the Company or any committee thereof Company Subsidiary, whether or consultation with not such person is purporting to act on behalf of 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 any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.3 5.02(a) by the Company.
(except for b) Neither the Company Board nor any immaterial breach committee thereof shall (i) withdraw or modify in a manner adverse to Parent or Sub, or publicly propose to withdraw or modify in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board of this Section 5.3 by a Representative Agreement or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or publicly propose to approve or recommend, any Company Takeover Proposal. Notwithstanding the foregoing, if, prior to receipt of the Company who is not an officer or director of Stockholder Approval, (v) 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, Company Board has received a Superior Proposal and/or Company Proposal, (yw) 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 as a confidentiality agreement in place as of the date hereof, result thereof the Company Board 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 have determined in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach it is required for the purpose of the directors’ fulfilling its fiduciary duties under Applicable applicable Law, (x) the Company has notified Parent in writing of the determination described in clause (w) above, (y) at least three business days following receipt by Parent of the notice received in clause (x) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (x) above, the Company Board determines that such Superior Company Proposal remains a Superior Company Proposal in accordance with clause (w) above, and (z) the Company is in compliance with this Section 5.02, the Company Board may withdraw or modify its approval or recommendation of the Merger and this Agreement.
(c) The Company promptly shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to or that would reasonably be expected to lead to any Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the material terms of any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent informed of the status (including any change to the terms thereof) of any such Company Takeover Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of the Company Takeover Proposal (including any amendments or supplements thereto) and all such other material information provided in writing to the Company by the party making such Company Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.35.2(b), until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company and its Subsidiaries shall not, nor shall the Company they authorize or knowingly permit any of its Subsidiaries to, nor shall the Company authorize any of its their respective Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiateinitiate or induce the making, submission or announcement of, or encourage, facilitate or knowingly encourage assist, any inquiries, proposals proposal or offers offer that constituteconstitutes, or that would may reasonably be expected to lead to, an Acquisition Proposal, (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or provide any of its Subsidiaries, or afford to any Third Party Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the businessesbusiness, properties, assets assets, books, records or personnel other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in each any such case for with the purpose of encouraging intent to induce the making, submission or facilitating announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, (Ciii) participate in, continue or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal, (iv) agree to, approve, endorse or recommend an Acquisition Proposal or enter into any letter of intent, agreement, contract, commitment agreement or agreement in principle principle, merger agreement or other similar agreement with respect to an Acquisition Proposal (in each case, other than an Acceptable Confidentiality Agreementas permitted pursuant to Section 5.3(c)), (v) authorize or enter into permit any agreement, contract or commitment requiring Representatives of the Company or any of its Subsidiaries retained by or acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to abandontake any action set forth in the preceding clauses (i) through (iv) of this Section 5.2(a), terminate or fail (vi) release any third party from, or waive any provision of, any confidentiality or standstill agreement to consummate which it is a party. Immediately after the transactions contemplated by execution and delivery of this Agreement; and
(ii) , the Company shallwill, and shall will cause its Subsidiaries to, and shall direct the Company’s Affiliates and its Subsidiaries’ their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations with any Third Party theretofore Person conducted by the Company, its Subsidiaries or their respective Representatives heretofore with respect to an any possible Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained set forth in this AgreementSection 5.2(a), if, at any time prior to the Acceptance Timetime the Shareholder Approval is obtained, (i) if the Company receives a an unsolicited bona fide 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 Person 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 of Section 5.2(a) and that has not an officer been withdrawn, (i) the Company Board (acting through the Special Committee, if in existence), may, directly or director of indirectly through the Company)’s Representatives, contact such Third Party solely in order Person to clarify and understand the terms and conditions of an Acquisition Proposal made by such Third Party so as thereof in order to determine assess whether such Acquisition Proposal constitutesis or would, or could would reasonably be expected to, result in a Superior Proposal, and (ii) if the Company Board has (A) determined, in its good faith judgment, upon the recommendation of the Special Committee (after consultation with a financial advisor of internationally recognized reputation and outside legal counsel), that such Acquisition Proposal is or would reasonably be expected to lead to, result in a Superior Proposal and/or and (B) determined, in its good faith judgment upon the recommendation of the Special Committee (upon advice by outside legal counsel), that, in light of such Acquisition Proposal, failure to enter into discussions with or furnish such information to the Person who made such Acquisition Proposal would reasonably be expected to be inconsistent with its fiduciary duties to the Company and its shareholders under applicable Law, then the Company and its Representatives may (x) participate or engage in discussions or negotiations with the Person that has made such Acquisition Proposal 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 furnish to the extent expressly prohibited by a confidentiality agreement in place as Person making such Acquisition Proposal any information (including non-public information) relating to the Company or any of the date hereof, its Subsidiaries; provided that the Company shall as promptly as practicable (and in any event within twenty-four (24) hours1) notify Parent of any Acquisition ProposalProposal (including, which notification without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 48 hours) after its receipt thereof, and shall include (i) provide Parent with a copy of the applicable of, any written Acquisition Proposal (oror amendments or supplements thereto, if oraland shall thereafter inform Parent on a prompt basis of the status of any inquiries, discussions or negotiations with such third party, and any material changes to the material terms and conditions of such Acquisition Proposal, (2) obtain from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and (ii3) the identity concurrently give Parent a copy of the Third Party making any information delivered to such Acquisition ProposalPerson that was not previously provided to Parent. 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 Proposalnot, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the material terms date hereof that would restrict the Company’s ability to provide such information to Parent, 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 neither 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 nor any of its Subsidiaries is a party, other than currently party to the extent the Board of Directors of any agreement that prohibits the Company or any committee thereof determines from providing the material information described in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure this Section 5.2(b) to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawParent.
Appears in 1 contract
Sources: Merger Agreement (Liu Tianwen)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by From the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Effective Time or and the termination of date, if any, on which this Agreement pursuant to is terminated in accordance with Section 8.1:
7.1, except as expressly provided in Section 5.5(b) or Section 5.5(d), (i) the Company shall notimmediately cease and cause to be terminated, nor and shall the Company permit cause its Subsidiaries and instruct its and its Subsidiaries’ Representatives to immediately cease and cause to be terminated, all existing activities, discussions, negotiations and communications, if any, with any Persons (or any of its Subsidiaries to, nor shall the their Representatives) with respect to any Company authorize any of its Representatives Acquisition Proposal (other than Parent or any of its Subsidiary’s Affiliates or Representatives to, and with respect to the transactions contemplated by this Agreement); (ii) the Company shall not, and shall not publicly propose permit its Subsidiaries and its and its Subsidiaries’ Representatives to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) initiate, seek, solicit, initiate, knowingly facilitate or knowingly encourage encourage, or knowingly induce or take any inquiries, proposals other action designed or offers that constituteintended to lead to, or that would reasonably be expected to lead to any inquiry with respect to, an or the making, submission or announcement of, any Company Acquisition Proposal, (B) engage inenter into, continue or otherwise participate in any negotiations or discussions or negotiations with any Third Party regarding an Acquisition Proposalwith, or furnish or cause to be furnished any Third Party information or provide to any Third Party data to, or furnish access to the businesses, properties, assets or personnel of the Company Company’s (or any of its Subsidiaries’) properties with respect to, in each case for the purpose any Person (other than Parent or any of encouraging its Affiliates or facilitating an Representatives) relating to any Company Acquisition Proposal or (C) enter into any letter of intentinquiry, agreement, contract, commitment proposal or agreement in principle with respect offer that would reasonably be expected to an lead to any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreementinforming any Persons of the provisions of this Section 5.5), or grant any waiver or release under (or terminate, amend or modify any provision of), or fail to use reasonable best efforts to enforce to the fullest extent permitted under applicable Law, any confidentiality or standstill or similar agreement (except that if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to grant any waiver or release would be inconsistent with the Company Board’s fiduciary duties under applicable Law, the Company may waive any such standstill provision solely to the extent necessary to permit a third Person to make a Company Acquisition Proposal), (C) execute or enter into any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, contract acquisition agreement, option agreement, joint venture agreement, partnership agreement or commitment requiring other agreement, commitment, arrangement or understanding relating to or in connection with, or that is intended to or would reasonably be expected to lead to, any Company Acquisition Proposal (each, an “Alternative Acquisition Agreementˮ), (D) submit to the stockholders of the Company for their approval any Company Acquisition Proposal or Company Superior Proposal, or (E) resolve to abandondo, terminate or fail agree or announce an intention to consummate do, any of the transactions contemplated by this Agreementforegoing; and
(iiiii) the Company shall not provide (and will not permit its Subsidiaries and its and its Subsidiaries’ Representatives to provide) and shall promptly, and in any event, within twenty-four (24) hours of the date of this Agreement, terminate access of any third Person (and its Representatives) (other than Parent or any of its Affiliates or Representatives) to any data room (virtual or actual) containing any of the Company’s (or any Subsidiary of the Company’s) confidential information granted in connection with, or with the intent of obtaining, any possible Company Acquisition Proposal; and (iv) the Company, to the extent it has a right to do so, shall, and shall cause instruct its Subsidiaries to, and shall direct the Company’s its and its Subsidiaries’ Representatives to, immediately cease use their respective reasonable best efforts to request that any such third Person (and terminate its Representatives) (other than Parent or any existing discussions of its Affiliates or negotiations with Representatives) in possession of confidential information about the Company or any Third Party theretofore conducted by the Company, of its Subsidiaries (or its or its Subsidiaries’ businesses or operations) return or destroy all such information, and in connection therewith the Company shall, to the extent it has a right to do so, within twenty-four (24) hours of the date of this Agreement, demand the return or destruction of all confidential information and materials provided to any third Persons (or their respective Representatives with respect Representatives) (other than Parent or any of its Affiliates or Representatives) relating to an a possible Company Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) obtaining the Company receives Stockholder Approval, if the Company receives, after the date hereof, a bona fide written Company 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 third Person 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 5.5, then the Company who is not may (i) furnish information concerning its business, properties or assets to such Person pursuant to an officer or director Acceptable Confidentiality Agreement (a copy of which shall be provided to Parent promptly after execution) and (ii) negotiate and participate in discussions and negotiations with such Person concerning such Company Acquisition Proposal, in each case of clause (i) and (ii), if and only if the Company Board determines in good faith (after consultation with the Company), contact ’s financial advisors and outside legal counsel) that (x) such Third Party solely in order to clarify and understand the terms and conditions of an Company Acquisition Proposal made by such Third Party so as to determine whether such Acquisition Proposal constitutes, constitutes or could reasonably be expected to lead to, to or result in a Company Superior Proposal and/or and (y) direct any Persons the failure 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, take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law. The Company (A) shall as promptly as practicable (and in any event case within twenty-four (24) hours) notify provide Parent notice (1) of the receipt of any Company Acquisition Proposal, which notification notice shall include (i) include, if applicable, a complete, unredacted copy of such Company Acquisition Proposal, and (2) of any inquiries, proposals or offers received by, any requests for information from, or any discussions or negotiations sought to be initiated or continued with, the applicable written Company, any of its Subsidiaries or any of its or its Subsidiaries’ Representatives concerning a Company Acquisition Proposal (or, if oral, the material terms and conditions of such or proposal that is reasonably likely to constitute or lead to or result in a Company Acquisition Proposal) , and (ii) disclose the identity of the Third Party making other party (or parties) and, if applicable, the terms (including any amendments thereto) of such Acquisition Proposal. The inquiry, offer, proposal, request, discussion or negotiation and, in the case of written materials, provide copies of such materials, (B) shall substantially concurrently (and in any case within twenty-four (24) hours) make available to Parent all information, including copies of all written materials, provided by the Company or any of its Subsidiaries or its or its Subsidiaries’ Representatives to such party but not previously made available to Parent and (C) shall thereafter keep Parent reasonably informed on a reasonably current prompt basis (and, in any case, within twenty-four (24) hours of any significant development, discussions or negotiations) of the status and details (including amendments and proposed amendments) of any material developmentssuch Company Acquisition Proposal or other inquiry, discussions offer, proposal, request, discussion or negotiations regarding negotiation (which shall include, if applicable, copies of all drafts and final versions (and any such comments thereon) of agreements (including schedules and exhibits thereto) relating to any Company Acquisition ProposalProposal exchanged between the Company or its Subsidiaries or any of its or its Subsidiaries’ Representatives in each case thereof, on the one hand, 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 Person (or any of its Representatives) making such Company Acquisition Proposal and or such other inquiry, offer or proposal, on 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 hereofother hand).
(dc) The Except as expressly permitted by Section 5.5(d) or Section 5.5(e), neither the Company agrees not Board nor any committee thereof shall (i) withdraw, qualify or modify in a manner adverse to release Parent, or permit publicly propose to withdraw, qualify or modify in a manner adverse to Parent, the release Company Recommendation, (ii) approve, authorize, declare advisable, endorse or recommend (or publicly propose to approve, authorize, declare advisable, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include in the Proxy Statement the Company Recommendation, (iv) fail to publicly reaffirm the Company Recommendation within ten (10) Business Days of receipt of a written request by Parent to provide such reaffirmation following public disclosure of any Person fromCompany Acquisition Proposal, (v) fail to recommend against any Company Acquisition Proposal that is a tender or exchange offer subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender or exchange offer (any action described in clauses (i) through (v) of this sentence being referred to as a “Company Adverse Recommendation Changeˮ) or (vi) adopt or approve, or propose to waive adopt or permit the waiver approve, or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any of allow the Company or any of its Subsidiaries is a partyto execute or enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement permitted under, and in compliance with Section 5.5(b)).
(d) Notwithstanding anything in this Agreement to the extent contrary, if at any time prior to the Board of Directors receipt of the Company Stockholder Approval, the Company or any committee thereof the Company Board receives a Company Superior Proposal, the Company Board may authorize and cause the Company to (x) effect a Company Adverse Recommendation Change and (y) terminate this Agreement pursuant to Section 7.1(c)(ii) and concurrently with such termination enter into a definitive agreement providing for such Company Superior Proposal (subject to the satisfaction of its obligations under Section 7.3) if (i) the Company Board determines in good faith, after consultation with the Company Financial Advisor and Company’s outside legal counsel, that the failure to do so take such action would constitute a breach of be inconsistent with the directors’ Company Board’s fiduciary duties under Applicable applicable Law; (ii) the Company has notified Parent in writing that it intends to take such action; (iii) the Company has provided Parent a copy of the proposed definitive agreements (and any related agreements) relating to such Company Superior Proposal (and has informed Parent of the identity of the Person making such Company Superior Proposal); (iv) until 11:59 p.m., New York City time, on the fourth (4th) Business Day following the notice delivered pursuant to clause (ii) of this Section 5.5(d), the Company and its Representatives shall have discussed and negotiated with Parent in good faith (to the extent Parent requests to negotiate) any proposed modifications to the terms and conditions of this Agreement (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period, which shall expire at 11:59 p.m., New York City time, on the second (2nd) Business Day following the delivery of such new notice); and (v) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith (after consultation with the Company’s financial advisor and outside legal counsel), after considering and taking into account the terms of any proposed amendment or modification to this Agreement made by Parent in writing during such period, that (A) the Company Acquisition Proposal that is the subject of the notice described in clause (ii) above still constitutes a Company Superior Proposal and (B) the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law.
(e) Notwithstanding anything in this Agreement to the contrary, other than in connection with a Company Superior Proposal (which shall be subject to Section 5.5(d) and shall not be subject to this Section 5.5(e)), prior to obtaining the Company Stockholder Approval, the Company Board may, in response to a Company Intervening Event, effect a Company Adverse Recommendation Change if (i) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law; (ii) the Company has notified Parent in writing that it intends to effect such a Company Adverse Recommendation Change pursuant to this Section 5.5(e) (which notice shall reasonably specify the facts and circumstances providing the basis of the Company Intervening Event and for the Company Board’s determination to effect the Company Adverse Recommendation Change in detail); (iii) until 11:59 p.m., New York City time, on the fourth (4th) Business Day following the notice delivered pursuant to clause (ii) of this Section 5.5(e), the Company and its Representatives shall have discussed and negotiated with Parent in good faith any proposed modifications to the terms and conditions of this Agreement (to the extent Parent requests to negotiate) (it being understood and agreed that any material change to the relevant facts and circumstances shall require a new notice and a new negotiation period, which shall expire at 11:59 p.m., New York City time, on the second (2nd) Business Day following the delivery of such new notice); and (iv) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith (after consultation with the Company’s outside legal counsel), after considering and taking into account the terms of any proposed amendment or modification to this Agreement made by Parent in writing during such period, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or (ii) making any disclosure to its stockholders if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to make such disclosure would be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, however, that (A) in no event shall this Section 5.5(f) permit the Company or the Company Board to make a Company Adverse Recommendation Change except as otherwise permitted pursuant to Section 5.5(d) or Section 5.5(e), (B) in no event shall this Section 5.5(f) affect, modify or supplement the definition of Company Adverse Recommendation Change herein (or to the consequences thereof in accordance with this Agreement) and (C) any such disclosure (other than issuance by the Company of a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that does not expressly reaffirm the Company Recommendation shall be deemed to be a Company Adverse Recommendation Change; provided further that any factually accurate public statement that describes the Company’s receipt of a Company Acquisition Proposal and the operation of this Agreement with respect thereto and expressly reaffirms the Company Recommendation shall not be deemed to be a Company Adverse Recommendation Change. The Company shall provide Parent with a copy of the text of any disclosure proposed to be made pursuant to this Section 5.5(f) at the earliest practicable time in advance of such disclosure.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as expressly permitted by this Section 5.3, until from and after the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) date hereof, the Company shall, and shall not, nor shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s and Representatives to, (x) promptly cease and the Company shall not publicly propose to, directly or indirectly (other than with respect cause to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in terminated any discussions or negotiations with any Third Party regarding that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or furnish destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the existence of the provisions contained in this Section 5.3), except that, the Company or may ascertain facts from any of its Subsidiaries, in each case Person making an Acquisition Proposal for the purpose of encouraging the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or facilitating its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (CD) enter into any letter of intent, agreement, contract, commitment intent or agreement in principle with respect or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality AgreementAgreement in accordance with Section 5.3(b)); or (E) reimburse or enter into agree to reimburse the expenses of any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
other Person (ii) the Company shall, and shall cause its Subsidiaries to, and shall direct other than the Company’s and its Subsidiaries’ Representatives toRepresentatives) in connection with an Acquisition Proposal or any inquiry, immediately cease and terminate any existing discussions discussion, offer or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.3(a), if, if at any time following the date hereof and prior to the Acceptance Time, Time (i) the Company receives has received a bona fide written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach of this Section 5.3 (except for in any immaterial breach of this Section 5.3 material respect by a Representative of the Company who is not an officer or director of the Company), and (iii) the Company Board of Directors of the Company (or any a duly authorized committee thereof thereof) determines in good faith, after consultation with the Company Financial Advisor its financial advisors and outside legal counsel, based on information then available, that such Acquisition Proposal constitutes, constitutes or could would reasonably be expected to lead to, to a Superior Proposal, and (iv) 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 Proposal, its representatives and afford such Third Party access potential sources of financing pursuant to the businesses, properties, assets and personnel of the Company and its Subsidiaries (but only pursuant to) one or more Acceptable Confidentiality Agreements 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 negotiationsProposal; 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 provided or access made available to any Third Party shall, to the extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub as promptly as reasonably practicable (and in no event later than twenty four (24) hours) after it is provided or made available to such Third Party which was not previously provided to Parent. Notwithstanding anything Party, except to the contrary contained in this Agreement, the Company and its Representatives may (without extent providing Parent or Merger Sub with such information would violate any determination by the Board 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 5.3applicable Law.
(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-twenty four (24) hours) notify Parent of in the event that the Company receives any Acquisition Proposal, which notification . The Company shall include notify Parent promptly (iand in any event within twenty four (24) hours) of the identity of such Person and provide to Parent a copy of the applicable written such Acquisition Proposal (or, where no such copy is available, a reasonable description 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 oralthe Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(b).
(d) Notwithstanding anything to the contrary contained in Section 5.3(a), if the Company has received a bona fide written Acquisition Proposal that the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal, the Company Board may at any time prior to the Acceptance Time, (i) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement pursuant to Section 7.1(f), in either case subject to the requirements of this Section 5.3(d). The Company shall not be entitled to effect a Change of Board Recommendation pursuant to this Section 5.3(d) or terminate this Agreement pursuant to Section 7.1(f) unless the Company shall have provided to Parent at least three (3) Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice shall specify the material terms and conditions of such Acquisition Proposal, and shall have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Acquisition Proposal, and:
(i) during the Notice Period, if requested by Parent, the Company shall have, and shall have caused its legal and financial advisors to have, engaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
(ii) the Company Board shall have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (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 that the Superior Proposal would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect. In the event of any material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal, 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(d) with respect to such new written notice, except that the Notice Period shall be two (2) Business Days with respect to any such revised Superior Proposal.
(e) Notwithstanding anything to the contrary contained in Section 5.3(a), the Company Board (or a duly authorized committee thereof) may at any time prior to the Acceptance Time, effect a Change of Board Recommendation if (i) the Company Board (or a duly authorized committee thereof) determines that an Intervening Event has occurred and is continuing 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 Board (or its Representativesa duly authorized committee thereof) 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 Financial Advisor and outside legal counsel, that the failure to do so effect a Change of Board Recommendation in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company, but such Change of Board Recommendation shall not occur until a time that is after the third Business Day following Parent’s receipt of written notice from the Company advising Parent of the material facts relating to such Intervening Event and stating that it intends to make a Change of Board Recommendation and provided that (A) during such three (3) Business Day period the Company has negotiated in good faith with Parent to the extent Parent wishes to negotiate to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with the Company Board Recommendation and (B) at the end of such three (3) Business Day period, the Company Board maintains its determination described in this clause (ii) (after taking into account any adjustments offered in writing by Parent to the material terms and conditions of this Agreement)
(f) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company 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) making any disclosure to the stockholders of the Company if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties 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 the Exchange Act, shall not constitute a breach Change of the directors’ fiduciary duties under Applicable LawBoard Recommendation.
(g) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Care.com Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor and shall cause its Subsidiaries not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 7.10(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company permit or any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party afford access to the businessesbusiness, properties, assets assets, books, or personnel records of the Company or any of its SubsidiariesSubsidiaries to, in each case for the purpose of encouraging or facilitating an Acquisition Proposal knowingly assist, participate in, facilitate, or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal; or (Cii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, contractmerger agreement, commitment option agreement, joint venture agreement, partnership agreement, or agreement in principle other contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 7.10(a), the Company Board shall not effect 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 commercially reasonable efforts to cause any such third 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 (and confirm destruction of) all such information. The Company will be liable for any breach of this Section 7.10(a) by its Representative.
(b) Notwithstanding Section 7.10(a), prior to the receipt of the Company Shareholder Approval , the Company Board, directly or indirectly through any Representative, may, subject to Section 7.10(c) and Section 7.10(d): (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 its other professional advisors (and, if necessary, contact with such third party to clarify the terms and conditions of such Takeover Proposal), 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 Acquisition Proposal executed confidentiality agreement; (other than an Acceptable Confidentiality Agreementiii) or enter into following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; and (iv) take any agreement, contract or commitment requiring action that any court of competent jurisdiction orders the Company to abandontake (which order remains unstayed). Nothing contained herein shall (i) 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; (ii) making any “stop, terminate look and listen” communication to the stockholders of the Company pursuant to Rule 14d‑9(f) under the Exchange Act or fail (iii) making any disclosures to consummate the stockholders of the Company with regard to the transactions contemplated by this Agreement or any Takeover Proposal required by Law.
(c) The Company shall notify Parent promptly (but in no event later than 48 hours) after receipt by the Company (or any of its Representatives) of any Takeover Proposal, any inquiry that could reasonably be expected to lead to a Takeover Proposal, any 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 such notice, the Company 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 reasonably informed of material developments affecting the status and material terms of any such Takeover Proposal, indication or request. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s and any of its Subsidiary’s business, present or future performance, financial condition, or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as expressly permitted by this Section 7.10, the Company Board shall not effect a 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 Shareholder Approval, the Company Board may effect 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 two (2) Business Days (the “Superior Proposal 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 effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; and
(ii) the Company includes in such notice a description in reasonable detail of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and terminate conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments; and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its other professional advisors, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any existing discussions or negotiations with any Third Party theretofore conducted adjustments made by Parent during the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSuperior Proposal Notice Period in the terms and conditions of this Agreement.
(be) Notwithstanding anything to the contrary contained in the foregoing, the Company Board may effect a Company Adverse Recommendation Change, after the date of this Agreement, if, at any time Agreement but prior to the Acceptance Timereceipt of the Company Shareholder Approval, if: (i) prior to effecting the Company receives a written Acquisition Proposal from a Third PartyAdverse Recommendation Change, (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation consulting with outside legal counsel and its other professional advisors, that the failure to take the actions referred effect such Company Adverse Recommendation Change, would be reasonably likely to result in clause (A) or (B) below would constitute a breach violation of its fiduciary duties to the shareholders of the Company under Applicable 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 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 Company Board shall notify Parent, in writing, at least five (5) Business Days before taking such action of its intention to take such action and a reasonable description of the Third Party making event or circumstances giving rise to its determination and (iii) at the end of such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developmentsnotice period, 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 (Board takes into account any amendment or its Representatives) within twenty four (24) hours after receipt thereof (except modification to the extent expressly prohibited this Agreement proposed 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 Parent and determines in good faith, after consultation consulting with the Company Financial Advisor and outside legal counselcounsel and its other professional advisors, that the failure to do so would constitute effect such Company Adverse Recommendation Change, would, nevertheless, be reasonably likely to result in a breach violation of the directors’ its fiduciary duties under Applicable applicable Law.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Flyexclusive Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until From the date hereof through the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) 7.1 or the Closing, none of the Sellers, the Companies, the Company shall notSubsidiaries or any of their respective officers, nor shall directors, employees, partners, stockholders, members, managers and other agents or representatives will, and the Sellers, the Companies and the Company permit any of its Subsidiaries towill cause their own and their Affiliates’ officers, nor shall the Company directors, employees, partners, stockholders, members, managers and other agents or representatives not to (and will not authorize any of its Representatives or any of its Subsidiary’s Representatives them to, and the Company shall not publicly propose to), directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, encourage, knowingly facilitate or knowingly encourage induce any inquiries, proposals or offers that constituteinquiry with respect to, or the making, or submission of, any Acquisition Proposal with respect to any of the Companies, the Company Subsidiaries or the Business; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that would constitutes or may reasonably be expected to lead to, an any Acquisition Proposal, Proposal with respect to any of the Companies or the Company Subsidiaries; (Biii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish Person with respect to any Third Party information or provide to any Third Party access Acquisition Proposal with respect to the businessesCompanies, properties, assets or personnel of the Company Subsidiaries or any the Business, except as to the existence of these provisions; (iv) approve, endorse, recommend or submit to a vote of holders of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Equity Interests any Acquisition Proposal with respect to the Companies, the Company Subsidiaries or the Business; or (Cv) enter into any letter of intent, agreement, contract, commitment intent or agreement in principle with respect similar document or any Contract contemplating or otherwise relating to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions transaction contemplated by this Agreement; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 thereby 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 AgreementCompanies, the Company and its Representatives may (without Subsidiaries or the Business. Notwithstanding the foregoing, any determination by the Board of Directors of the Seller, Company or any committee thereof Company Subsidiary may respond to an inquiry or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt other expression of an Acquisition Proposal from a Third Party that did not result from a breach of interest without being deemed to have violated 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 5.13 if 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 only to the extent expressly that such response states only that such Seller, Company or Company Subsidiary is prohibited by a confidentiality agreement in place as of the date hereoffrom, 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 developmentsamong other things, discussions or negotiations regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration inquiry or other material amendment thereto), including by providing a copy expression 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)interest.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (YRC Worldwide Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) The Company and (c) and except as permitted by this Section 5.3the officers, until the earlier to occur directors, employees or other agents of the Acceptance Time Company will not, directly or the termination of this Agreement pursuant to Section 8.1:
indirectly, (i) take any action to solicit, initiate or intentionally encourage any Takeover Proposal (as defined below) or (ii) subject to the terms of Section 4.3(b) below, take any action to solicit, intentionally facilitate, intentionally encourage or engage in negotiations or discussions with, or disclose any nonpublic information relating to the Company shall notto, nor shall or afford access to the properties, books or records of the Company permit any of its Subsidiaries to, nor shall any Person that has advised the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect in writing that it intends to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitutemake, or that would reasonably be expected to lead tohas made, an Acquisition a Takeover Proposal; provided, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shall, and nothing herein shall cause its Subsidiaries to, and shall direct prohibit the Company’s 's Board of Directors from complying with Rules 14d-9 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions 14e-2 promulgated under the Exchange Act with regard to a tender or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalexchange offer.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 4.3(a) above, if, at any time prior to the Acceptance Time, (i) the Company receives a if an unsolicited 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutesTakeover Proposal, or could an unsolicited written expression of interest that can reasonably be expected to lead to, to a Superior Takeover Proposal, and (iv) 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 is received by the Board of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counselCompany, then: (i) (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 if none of the Company who is not an officer and its officers, directors, employees or director other agents and representatives have violated in any material respect any of the Companyrestrictions in Section 4.3(a), 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 believes in good faith (after consultation with its financial advisors) that such Takeover Proposal would reasonably be expected to result in a transaction that is more favorable to the Company's shareholders than the transaction contemplated by this Agreement (any committee thereof such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal"), and (iii) the Board of Directors of Company determines in good faithfaith (after consultation with outside legal counsel) that failure to take action with respect to such Superior Proposal would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company's shareholders under applicable law, the Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection with such a Superior Proposal information and take such other actions with respect to such Superior Proposal as are consistent with the fiduciary obligations of Company's Board of Directors, and such actions with respect to such Superior Proposal shall not be considered a breach of Section 4.3(a), provided that in each such event Company: (A) notifies Parent in writing of such determination by the Company's Board of Directors, and (B) provides Parent with a summary of the Superior Proposal received from such third party so long as such disclosure does not cause the breach of any non-disclosure or confidentiality agreements of the Company outstanding as of the Execution Date. Notwithstanding the immediately preceding sentence, neither the Company nor its representatives may take any action with respect to a Superior Proposal unless and until: (x) the Board of Directors of Company has determined, after consultation with the Company Financial Advisor and outside legal counselCompany's investment bankers, that failure to do so would constitute such third party is actually capable of making a breach Superior Proposal upon satisfactory completion of such third party's review of the information supplied by the Company, and (y) such third party executes and delivers to the Company a non-disclosure or confidentiality agreement containing provisions regarding non-disclosure at least as restrictive as the Confidentiality Agreement (as defined in Section 5.4). Additionally, the Company shall not, and shall not permit any of its officers, directors’ fiduciary duties under Applicable Law, employees or other representatives to, agree to or intentionally endorse any Takeover Proposal (including any Superior Proposal), unless Parent or the Company terminates this Agreement and the Company pays to Parent all amounts payable to Parent pursuant to Sections 7.3(b) and (c) hereof, as applicable.
(c) The Company will promptly notify Parent after receipt, but in no event later than 24 hours from such receipt, of any Takeover Proposal or any notice that any Person is considering making a Takeover Proposal or any request for non-public information relating to the Company or for access to the properties, books or records of the Company by any Person that has advised the Company that it may be considering making, or that has made, a Takeover Proposal.
(d) For purposes of this Agreement, "Takeover Proposal" means any offer or proposal for, or any indication of interest in (whether written or oral), a merger or other business combination involving the Company or the acquisition of more than 25% of the Company Capital Stock, a material portion of the total assets or any material asset of the Company, other than the transactions contemplated by or disclosed in this Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by this Section 5.3, until after the earlier to occur of the Acceptance Time or the termination date of this Agreement pursuant to Section 8.1:
(i) Agreement, the Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries todirectors, nor shall the Company authorize any of its Representatives officers or other employees or any of its Subsidiary’s Representatives toinvestment banker, and financial advisor, attorney, accountant or other advisor, agent or representative retained by it (collectively, the Company shall not publicly propose "Representatives") to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Timethrough another person, (i) the Company receives a written Acquisition Proposal from a Third Partysolicit, initiate or encourage (ii) such Acquisition Proposal did not result from a breach including by way 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 Companyfurnishing information), (iii) or take any other action designed to, or which could reasonably be expected to, facilitate, any inquiries or the Board making of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, proposal that such Acquisition Proposal constitutes, constitutes or could reasonably be expected to lead to, a Superior Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Takeover Proposal, and (iv) in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure constitutes or is reasonably likely to take the actions referred lead to in clause a Superior Proposal (A) or (B) below would constitute as defined below), and which was unsolicited and did not otherwise result from a breach of its fiduciary duties this Section 4.02, and subject to the shareholders of the Company under Applicable Lawcompliance with Section 4.02 (c) and (d), then the Company may (Ax) furnish information and data with respect to the Company to the person making such Takeover Proposal (and its Subsidiaries representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are in no respect less favorable to the Third Party making such Acquisition Proposal and afford such Third Party access to Company than the businesses, properties, assets and personnel terms of the Company and its Subsidiaries Confidentiality Agreement (as defined in Section 5.04)); provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (By) enter into, maintain and participate in discussions or negotiations with the Third Party person making such Acquisition Takeover Proposal (and its representatives) regarding such Acquisition Proposal Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the first sentence of this Section 4.02(a) by any Representative of the Company, whether or otherwise cooperate with or assist or participate in, or facilitate, any not 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 person is purporting to an Acceptable Confidentiality Agreement and (2) will promptly provide to Parent any material non-public information concerning act on behalf of the Company or its Subsidiaries or access provided to such Third Party which was not previously provided to Parentotherwise, shall be a breach of this Section 4.02(a) by the Company. Notwithstanding anything to As of the contrary contained in date of this Agreement, the Company shall have, and shall have caused each of its Representatives may (without any determination by the Board 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)to have, 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 terminated all discussions or negotiations with all third parties regarding any Takeover Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and (ii) requested the identity prompt return or destruction of all confidential information relating to 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 previously furnished to any such Acquisition third parties. For purposes of this Agreement, "Takeover 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law." means any
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) Section 6.3(b), unless and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement shall have been terminated by either party pursuant to Section 8.1:
(i) Article VIII, the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (through Representatives or otherwise): (i) solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any Acquisition Proposal; (ii) disclose, in connection with an Acquisition Proposal, any information or 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 agreement relating to an Acquisition Proposal; or (iv) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitutethe Merger, or that would reasonably be expected to lead to, an Acquisition Proposal, (Bas otherwise required by applicable law. This Section 6.3(a) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to shall not limit the businesses, properties, assets or personnel ability of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations to sell Assets in accordance with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSection 5.1(f).
(b) Notwithstanding anything the foregoing, in response to the contrary contained in this Agreementa bona fide, ifunsolicited, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, Party (ii) such Acquisition Proposal did that does not result from a breach of this Section 5.3 6.3), the Company Board may, and may authorize and permit the Company’s Representatives to, (except for i) provide such Third Party with nonpublic information, (ii) otherwise facilitate any immaterial breach of this Section 5.3 effort or attempt by a Representative of the Company who is not an officer or director of the Company)Third Party to make such Acquisition Proposal, (iii) the Board of Directors agree to or recommend or endorse any such Acquisition Proposal, (iv) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, its approval and recommendation of the Merger and this Agreement, and (v) participate in discussions and negotiations with such Third Party relating to such Acquisition Proposal, if and only to the extent that (x) the Company or any committee thereof determines Board believes in good faith, faith (after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, ) that such Acquisition Proposal constitutes, or could reasonably if consummated would be expected to lead to, a Superior Proposal, and (ivy) the Board Company Board, after having consulted with and considered the advice of Directors of the Company determines outside counsel, has reasonably determined in good faith after consultation with outside legal counsel that the failure to take the actions referred to such action would result in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders of Company or the Company Stockholders under Applicable Lawapplicable law, then and (z) the Third Party has entered into a confidentiality agreement pertaining to nonpublic information regarding the Company may (A) furnish information and data with respect to containing terms in the Company and its Subsidiaries aggregate no more favorable to the Third Party making such than those in the Confidentiality Agreement (including the standstill provision thereof). In the event the Company Board withdraws or modifies its approval of the Merger and this Agreement as herein provided, the Merger and this Agreement shall nevertheless be submitted to the Company Stockholders for their consideration and approval in accordance with Section 3–105(d) of the MGCL. For a period of not less than five Business Days after Company delivers to Parent a Superior Proposal Notice, the Company shall and shall cause its legal and financial advisors to, if requested by Parent, negotiate in good faith with Parent to revise this Agreement so that the 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 that constituted a Superior Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiationsno longer constitutes a Superior Proposal; 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 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 determining whether an Acquisition Proposal from is a Third Party that did Superior Proposal the Company must take into account any amendments to this Agreement proposed by Parent. The Company shall not result from a breach enter into any agreement implementing an Acquisition Proposal prior to the termination of this Agreement in accordance with Section 5.3 8.1.
(except for c) The Company shall notify Parent as soon as practicable (but in any immaterial breach of this Section 5.3 event within 24 hours) after receipt by a Representative of the Company who is not an officer or director of the Company or by any of the Company)’s advisors of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the Company’s properties, contact such Third Party solely books or records by any person or entity that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in order to clarify writing and understand shall indicate in reasonable detail the identity of the offeror and the terms and conditions of an such proposal, inquiry or contact and copies of any proposed agreement relating thereto. If the Acquisition Proposal made is determined by such Third Party so as to determine whether such Acquisition Proposal constitutesthe Company Board, or could reasonably be expected to lead to, a Superior Proposal and/or (y) direct any Persons to in accordance with 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 be a confidentiality agreement in place as of the date hereofSuperior Proposal, the Company shall as promptly as practicable (contemporaneously furnish to Parent copies of any proposed agreement relating thereto and in any event within twenty-four (24) hours) all information it provides to the offeror and contemporaneously notify Parent in writing of any oral or written changes to the terms and conditions of any Acquisition Proposal. For the avoidance of doubt, which notification shall include (i) a copy any amendment to the financial or other terms of the applicable written an Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition whether or not a Superior Proposal) and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on be treated as 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 new Acquisition Proposal for purposes of this Section 6.3 and shall require a new Superior Proposal Notice if such new Acquisition Proposal is determined by the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except to the extent expressly prohibited by be a confidentiality agreement in place as of the date hereof)Superior Proposal.
(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 Nothing contained in this Section 6.3 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any of disclosure to its Subsidiaries is a party, other than to the extent the Board of Directors of stockholders if the Company or any committee thereof Board determines in good faith, faith after consultation with the Company Financial Advisor and its outside legal counsel, counsel that failure to do so would constitute reasonably be expected to result in a breach of the directors’ its fiduciary duties to the Company or its stockholders under Applicable Lawany applicable law, provided, however, that neither the Company nor the Company Board nor any committee thereof may, except as expressly permitted by this Section 6.3 or required by Rule 14e-2 promulgated under the Exchange Act, withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal; provided further, that disclosure to stockholders pursuant to Rule 14e-2 relating to an Acquisition Proposal shall be deemed to be a qualification, withdrawal or modification, of the Company Board’s recommendation of the Merger unless the Company Board expressly, and without qualification, reaffirms its recommendation of the Merger in such disclosure.
(e) The Company agrees that it will (i) immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal, (ii) use reasonable best efforts to cause all Persons other than Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub who have been furnished with confidential information regarding the Company in connection with the solicitation of or discussions regarding any Acquisition Proposal within the 12 months prior to the date hereof promptly to return or destroy such information, and (iii) use its reasonable best efforts to enforce and not waive any provision or release any Person (other than Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub) from any confidentiality, standstill or similar agreement relating to an Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of Section 6.3(a) of the obligations undertaken in this Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Pan Pacific Retail Properties Inc)
No Solicitation. (a) Subject to Sections 5.4(b) During the period from the date of this Agreement and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time Closing or the termination of this Agreement pursuant to Section 8.1:
Agreement, none of the Companies or any of the Subsidiaries or any of their respective affiliates, subsidiaries, officers, directors, employees, representatives and agents (including, without limitation the Financial Advisor) shall, directly or indirectly, (i) the Company shall not, nor shall the Company permit solicit or initiate any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers from any corporation, partnership, person or other entity or group other than the Purchaser or an affiliate of the Purchaser (a "Third Party") concerning any acquisition, consolidation, tender or exchange offer, merger, business combination, sale of securities or substantial assets (including by way of reinsurance) of any of the Subsidiaries or any other transaction that constitute, would result in the sale of all or any substantial portion of the Subsidiaries or the Business or that would reasonably be expected otherwise adversely affect the ability of the Companies and the Purchaser to lead to, consummate the Sale (any such transaction being referred to herein as an "Acquisition Proposal, "); or (Bii) engage in, continue or otherwise participate in have any discussions or negotiations with or provide any Third Party regarding an Acquisition Proposal, non-public or furnish confidential information to any Third Party information or provide relating to any Third Party access to inquiry, proposal or offer concerning an Acquisition Proposal; provided, however, that the businessesterm Acquisition Proposal shall not include, properties, assets or personnel of and this Agreement shall not limit the Company Companies or any of its their subsidiaries with respect to, any proposal for a transaction with respect to the Companies or any of their subsidiaries or any portion of the Companies or their subsidiaries not including any of the Subsidiaries, regardless of the form of such transaction, so long as such proposal or transaction would not adversely affect the ability of the Companies and the Purchaser to consummate the Sale. Notwithstanding the foregoing, the Companies, the Subsidiaries, and their respective affiliates, subsidiaries, officers, directors, employees, representatives and agents (i) may furnish or cause to be furnished information concerning the Companies' and their subsidiaries' businesses, properties or assets to a Third Party (subject to such Third Party executing a confidentiality agreement on terms no less favorable in each case the aggregate to LFC than those in the Confidentiality Agreement between the Purchaser and LFC dated December 12, 2000 (the "Confidentiality Agreement")), and may enter into, participate in, conduct or engage in discussions or negotiations with such Third Party, if and only to the extent that in connection with this clause (i) the Board of Directors of LFC shall have determined in good faith, after consultation with its external financial advisors and external legal counsel, that such actions are necessary in order for the purpose of encouraging or facilitating an Acquisition Proposal or directors to comply with their fiduciary duties under applicable law, (Cii) enter into may take any letter of intent, agreement, contract, commitment or agreement in principle position with respect to an Acquisition Proposal in accordance with Rules 14d-9 and 14e-2 under the Exchange Act (other than an Acceptable Confidentiality Agreementor any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or and may make disclosure to LFC's Stockholders if, in the good faith judgment of the Board of Directors of LFC, after consultation with its external financial advisors and external legal counsel, failure to so disclose would be inconsistent with its obligations under applicable law; and (iii) may, only in the case of a Qualified Acquisition Proposal and only in compliance with the provisions of Section 5.5(c), enter into any agreement, contract one or commitment requiring the Company to abandon, terminate or fail more agreements to consummate a Qualified Acquisition Proposal. As used herein, "Qualified Acquisition Proposal" means a bona fide written Acquisition Proposal or Acquisition Proposals to either (x) acquire all or substantially all of the transactions contemplated by this Agreementcapital stock or assets of the Subsidiaries on terms and subject to conditions that LFC's Board of Directors believes in good faith, taking into account all of the terms and conditions of such Acquisition Proposal or Acquisition Proposals, would, if consummated, be superior to the Sale and in the best interests of LFC's Stockholders or (y) acquire all or substantially all of the capital stock or assets of LFC on terms and subject to conditions that LFC's Board of Directors believes in good faith, taking into account all of the terms and conditions of such Acquisition Proposal or Acquisition Proposals, would, if consummated, be in the best interests of LFC's Stockholders; and
(ii) provided, however, that if any of the Company shallCompanies or Subsidiaries, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate or any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or of their respective Representatives affiliates, subsidiaries, officers, directors, employees, representatives or agents have breached any provision of this Section 5.5 in any respect in connection with respect the receipt of such bona fide written Acquisition Proposal that has actually prejudiced the Purchaser, such Acquisition Proposal shall not be deemed to an be a Qualified Acquisition Proposal.
(b) Notwithstanding anything to The Companies will promptly (and in no event later than 36 hours after receipt) notify the contrary contained Purchaser in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 notwriting of, 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 disclose to the contrary contained in this AgreementPurchaser all material details (including, the Company and its Representatives may (without any determination by the Board 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)limitation, 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 ) of, any material developments, discussions or negotiations regarding any such Acquisition Proposal, whether oral or written, that any of the Companies or Subsidiaries or any of their respective affiliates, subsidiaries, officers, directors, employees, representatives or agents (including, without limitation, the Financial Advisor) receives. If any of the Companies or Subsidiaries or any of their respective affiliates, subsidiaries, officers, directors, employees, representatives or agents furnishes any nonpublic information or confidential information to any Third Party pursuant to Section 5.5(a), the Companies shall provide the Purchaser on a concurrent basis with copies of or access to such information.
(c) Except as expressly permitted by this Section 5.5(c), neither LFC's Board of Directors nor any committee thereof shall or shall resolve to (i) not recommend or withdraw its approval or recommendation of the Sale, (ii) modify or qualify such approval or recommendation in a manner adverse to the Purchaser, (iii) approve or recommend any proposed Acquisition Proposal or (iv) cause LFC to enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to an Acquisition Proposal. Notwithstanding the foregoing, if prior to the Company Stockholders' Meeting, the Board of Directors of LFC determines in good faith, after it has received a Qualified Acquisition Proposal and after consultation with external legal counsel, that it must take such action to comply with its fiduciary duties to LFC's Stockholders under applicable law, then LFC's Board of Directors may (subject to this sentence) take any of the actions contemplated by clauses (i), (ii), (iii) and (iv) of the immediately preceding sentence (a "Subsequent Action") and terminate this Agreement pursuant to Section 7.1(c), but only if (x) the Companies deliver to the Purchaser a written notice advising the Purchaser that LFC's Board of Directors has received a Qualified Acquisition Proposal and specifying the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto)such Qualified Acquisition Proposal, including by providing a copy of material documentation relating thereto that is exchanged between identifying the Third Party (or its Representatives) person making such Qualified Acquisition Proposal and stating that, not earlier than 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 end of the date hereof)third Business Day following receipt by the Purchaser of such notice, LFC's Board of Directors intends to take a Subsequent Action; (y) during such three Business Day period, the Companies shall have considered, and shall have caused their respective affiliates, subsidiaries, officers, directors, employees, representatives and agents to have considered, in good faith any adjustments in the terms and conditions of this Agreement that the Purchaser may propose; and (z) the Purchaser does not, within such three Business Day period, offer to make such adjustments in the terms and conditions of this Agreement or other proposals regarding LFC such that LFC's Board of Directors determines in its good faith judgment (after consultation with the Financial Advisor or another independent financial advisor of nationally recognized reputation) that this Agreement, together with such adjustments offered by the Purchaser, is at least as favorable to LFC's Stockholders as such Qualified Acquisition Proposal.
(d) The Company agrees not Companies shall immediately cease and cause to release or permit the release of be terminated any Person fromactivities, discussions, or negotiations, existing on the date hereof, with any Third Party with respect to waive any Acquisition Proposal or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement that may reasonably be expected to which any of the Company or any of its Subsidiaries is a party, other than lead to the extent the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawan Acquisition Proposal.
Appears in 1 contract
Sources: Stock Purchase Agreement (Keyport Life Insurance Co)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor shall the Company it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company authorize any of its Representatives or any of its Subsidiary’s Representatives Company Subsidiary to, and the Company shall not publicly propose to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Company Takeover Proposal (other than as defined in Section 5.02(e)), (ii) enter into any agreement with respect to Parent and Purchaser), any Company Takeover Proposal or (Aiii) solicit, initiate, facilitate directly or knowingly encourage indirectly participate in any inquiries, proposals discussions or offers that constitutenegotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition any Company Takeover Proposal; provided, (B) engage inhowever, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish that prior to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel receipt of the Company or any of its SubsidiariesStockholder Approval, the Company may, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect response to an Acquisition unsolicited bona fide Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal which 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 5.02(a) and which the Company who is not an officer or director of the Company)Board determines, (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor outside counsel and outside legal counselfinancial advisors, that such Acquisition Proposal constitutes, or could may reasonably be expected to lead to, to a Superior ProposalCompany Proposal (as defined in Section 5.02(e)), and subject to compliance with Section 5.02(c), (iv) 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 (Ax) furnish information and data with respect to the Company to the person making such Company Takeover Proposal and its Subsidiaries Representatives pursuant to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel a customary confidentiality agreement not less restrictive of the Company and its Subsidiaries other party than the Confidentiality Agreement (as defined in Section 6.02) and (By) 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 person and its Representatives may (without regarding any determination Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by the Board of Directors any Representative of the Company or any committee thereof Company Subsidiary, whether or consultation with not such person is purporting to act on behalf of 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 any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.3 5.02(a) by the Company.
(except for b) Neither the Company Board nor any immaterial breach committee thereof shall (i) withdraw or modify in a manner adverse to Parent or Sub, or propose to withdraw or modify in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board of this Section 5.3 by a Representative Agreement or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or propose to approve or recommend, any Company Takeover Proposal. Notwithstanding the foregoing, if, prior to receipt of the Company who is not an officer or director of Stockholder Approval, (v) 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, Company Board has received a Superior Proposal and/or Company Proposal, (yw) 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 as a confidentiality agreement in place as of the date hereof, result thereof the Company Board 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 have determined in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach it is required for the purpose of the directors’ fulfilling its fiduciary duties under Applicable applicable Law, (x) the Company has notified Parent in writing of the determination described in clause (w) above, (y) at least three business days following receipt by Parent of the notice received in clause (x) above, and taking into account any revised proposal made by Parent since receipt of the notice referred to in clause (x) above, the Company Board determines that such Superior Company Proposal remains a Superior Company Proposal in accordance with clause (w) above, and (z) the Company is in compliance with this Section 5.02, the Company Board may withdraw or modify its approval or recommendation of the Merger and this Agreement.
(c) The Company promptly shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to or that would reasonably be expected to lead to any Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the material terms of any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent informed of the status (including any change to the terms thereof) of any such Company Takeover Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of the Company Takeover Proposal (including any amendments or supplements thereto) and all such other material information provided in writing to the Company by the party making such Company Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Stockholders Agreement (Coast Hotels & Casinos Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3Not directly or indirectly, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company authorize or permit any of its Subsidiaries respective agents to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly : (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, facilitate or knowingly encourage (including by way of furnishing information) any inquiries, proposals inquiry or offers that constitutethe making of any proposal which constitutes, or that would may reasonably be expected to lead to, any acquisition or purchase by a third party (other than BMC or an Acquisition Proposalaffiliate of BMC) of a substantial amount of assets of, (B) engage or any equity interest in, continue Bool▇ ▇▇ any merger, consolidation, business combination, sale of securities, recapitalization, liquidation, dissolution or otherwise similar transaction involving Bool▇ (▇▇ each case, other than as permitted by Section 4.1.1, Section 4.3.8 or any other provision of this Agreement) (collectively, "Bool▇ ▇▇▇nsaction Proposals") or agree to or endorse any Bool▇ ▇▇▇nsaction Proposal or (ii) propose, enter into or participate in any discussions or negotiations with regarding any Third Party regarding an Acquisition Bool▇ ▇▇▇nsaction Proposal, or furnish to another person (other than BMC or a representative of BMC) any Third Party information with respect to its business, properties or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging facilitating any Bool▇ ▇▇▇nsaction Proposal, provided, however, that nothing contained in this Section 4.3.6.1 or facilitating elsewhere in this Agreement shall prohibit Bool▇ ▇▇▇m (A) furnishing information pursuant to an Acquisition appropriate confidentiality letter concerning Bool▇ ▇▇▇ its businesses, properties or assets to a third party who has made a Superior Bool▇ ▇▇▇nsaction Proposal (as defined below), (B) engaging in discussions or negotiations with a third party who has made a Superior Bool▇ ▇▇▇nsaction Proposal or (C) enter into following receipt of a Superior Bool▇ ▇▇▇nsaction Proposal, taking and disclosing to its stockholders a position (including a positive recommendation) with respect thereto or changing, withdrawing or withholding the approval or recommendation by Bool▇'▇ ▇▇▇rd of directors of this Agreement or the Merger, but in each case referred to in the foregoing clauses (A) through (C) only after the board of directors of Bool▇ ▇▇▇cludes in good faith following advice of its outside counsel, represented by a written opinion, that such action is reasonably necessary in order for the board of directors of Bool▇ ▇▇ comply with its fiduciary obligations to Bool▇'▇ stockholders under applicable law. If the board of directors of Bool▇ ▇▇▇eives a Bool▇ ▇▇▇nsaction Proposal, then Bool▇ shall immediately inform BMC of the terms and conditions of such proposal and the identity of the person making it and shall keep BMC fully informed of the status and details of any letter such Bool▇ ▇▇▇nsaction Proposal and of intentall 24 steps it is taking in response to such Bool▇ ▇▇▇nsaction Proposal; provided that nothing contained in this Section 4.3.6.1 or elsewhere in this Agreement shall prohibit Bool▇ ▇▇ its board of directors from (i) making such disclosure to Bool▇'▇ ▇▇▇ckholders or taking any action which, agreementin the good faith judgment of Bool▇'▇ ▇▇▇rd of directors based on a written opinion of its outside counsel, contractmay be required under applicable law, commitment including Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or agreement in principle (ii) filing with the Commission a report on Form 8-K with respect to this Agreement and, only in the event BMC shall have previously filed a copy of this Agreement with the Commission, filing a copy of this Agreement and any related agreements as an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company exhibit to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in such report. For purposes of this Agreement, if, at any time prior to the Acceptance Time, (i) term "Superior Bool▇ Transaction Proposal" shall mean a bona fide Bool▇ ▇▇▇nsaction Proposal that the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach board of this Section 5.3 (except for any immaterial breach directors of this Section 5.3 by a Representative of the Company who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines Bool▇ ▇▇▇ermines in good faith after consultation with outside legal counsel that (and based in part on the failure advice of) its independent financial advisors to take be more favorable to Bool▇ ▇▇▇ Bool▇'▇ ▇▇▇ckholders than the actions referred Merger, is reasonably capable of being financed and is not subject 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 contingencies relating 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 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 5.3financing.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (BMC Software Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor and shall cause its Subsidiaries not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 7.10(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company permit or any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party afford access to the businessesbusiness, properties, assets assets, books, or personnel records of the Company or any of its SubsidiariesSubsidiaries to, in each case for the purpose of encouraging or facilitating an Acquisition Proposal knowingly assist, participate in, facilitate, or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal; or (Cii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, contractmerger agreement, commitment option agreement, joint venture agreement, partnership agreement, or agreement in principle other contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 7.10(a), the Company Board shall not effect 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 commercially reasonable efforts to cause any such third 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 (and confirm destruction of) all such information. The Company will be liable for any breach of this Section 7.10(a) by its Representative.
(b) Notwithstanding Section 7.10(a), prior to the receipt of the Company Shareholder Approval , the Company Board, directly or indirectly through any Representative, may, subject to Section 7.10(c) and Section 7.10(d): (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 its other professional advisors (and, if necessary, contact with such third party to clarify the terms and conditions of such Takeover Proposal), 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 Acquisition Proposal executed confidentiality agreement; (other than an Acceptable Confidentiality Agreementiii) or enter into following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; and (iv) take any agreement, contract or commitment requiring action that any court of competent jurisdiction orders the Company to abandontake (which order remains unstayed). Nothing contained herein shall (i) 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; (ii) making any “stop, terminate look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act or fail (iii) making any disclosures to consummate xlviii the stockholders of the Company with regard to the transactions contemplated by this Agreement or any Takeover Proposal required by Law.
(c) The Company shall notify Parent promptly (but in no event later than 48 hours) after receipt by the Company (or any of its Representatives) of any Takeover Proposal, any inquiry that could reasonably be expected to lead to a Takeover Proposal, any 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 such notice, the Company 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 reasonably informed of material developments affecting the status and material terms of any such Takeover Proposal, indication or request. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s and any of its Subsidiary’s business, present or future performance, financial condition, or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as expressly permitted by this Section 7.10, the Company Board shall not effect a 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 Shareholder Approval, the Company Board may effect 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 two (2) Business Days (the “Superior Proposal 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 effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; and
(ii) the Company includes in such notice a description in reasonable detail of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and terminate conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments; and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its other professional advisors, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any existing discussions or negotiations with any Third Party theretofore conducted adjustments made by Parent during the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSuperior Proposal Notice Period in the terms and conditions of this Agreement.
(be) Notwithstanding anything to the contrary contained in the foregoing, the Company Board may effect a Company Adverse Recommendation Change, after the date of this Agreement, if, at any time Agreement but prior to the Acceptance Timereceipt of the Company Shareholder Approval, if: (i) prior to effecting the Company receives a written Acquisition Proposal from a Third PartyAdverse Recommendation Change, (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation consulting with outside legal counsel and its other professional advisors, that the xlix failure to take the actions referred effect such Company Adverse Recommendation Change, would be reasonably likely to result in clause (A) or (B) below would constitute a breach violation of its fiduciary duties to the shareholders of the Company under Applicable 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 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 Company Board shall notify Parent, in writing, at least five (5) Business Days before taking such action of its intention to take such action and a reasonable description of the Third Party making event or circumstances giving rise to its determination and (iii) at the end of such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developmentsnotice period, 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 (Board takes into account any amendment or its Representatives) within twenty four (24) hours after receipt thereof (except modification to the extent expressly prohibited this Agreement proposed 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 Parent and determines in good faith, after consultation consulting with the Company Financial Advisor and outside legal counselcounsel and its other professional advisors, that the failure to do so would constitute effect such Company Adverse Recommendation Change, would, nevertheless, be reasonably likely to result in a breach violation of the directors’ its fiduciary duties under Applicable applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Flyexclusive Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor and shall the Company not permit any of its Subsidiaries toofficers, nor shall the Company authorize any of its Representatives directors, employees, Affiliates, agents, investment bankers, attorneys, other advisors or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose other representatives to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) take any action to solicit, initiateinitiate or encourage (including by way of furnishing or disclosing non-public information) any inquiries or the making of any offer or proposal by any Person or group concerning any tender or exchange offer, facilitate proposal for a merger, share exchange, recapitalization, consolidation or knowingly encourage any inquiries, proposals or offers that constituteother business combination involving the Company, or that would reasonably be expected any proposal or offer to lead toacquire in any manner, directly or indirectly, an equity interest in, or a portion of the assets of, the Company, other than pursuant to the transactions contemplated by this Agreement (each such offer or proposal, an “Acquisition Proposal”), or (B) engage in, continue or otherwise participate in any discussions or negotiations with or encourage any Third Party regarding effort or attempt by any Person (other than the Parent, the Buyer and their respective representatives) or take any other action to facilitate an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment Contract or agreement in principle understanding with respect to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company which would require it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated hereby by the shareholders of the Company; provided, however, that, prior to receipt of the approval of this Agreement and the transactions contemplated hereby by this Agreement; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by shareholders of the Company, its Subsidiaries the Company may, to the extent required by the fiduciary obligations of the Company's Board of Directors, as determined in good faith by it based on the advice of outside counsel, in response to any such Acquisition Proposal that was not solicited by the Company and that did not otherwise result from a breach or their respective Representatives a deemed breach of this Section 6.1(c), and subject to compliance with Section 6.1(c)(iii), (x) furnish information with respect to an Acquisition Proposal.
(b) Notwithstanding anything the Company to the contrary contained in this AgreementPerson making such proposal pursuant to a confidentiality agreement not less restrictive of the other party than the confidentiality agreement among the Parent, if, at any time prior to the Acceptance Time, (i) Buyer and the Company receives a written Acquisition Proposal dated March 2009, as the same may be amended from a Third Partytime to time (the “Confidentiality Agreement”), and (iiy) participate in negotiations regarding such Acquisition Proposal did proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its Affiliates, director or investment banker, attorney or other advisor or representative of the Company, whether or not result from such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 6.1(c) by a Representative of the Company who is not an officer or director of the Company), .
(iiiii) Neither the Company’s Board of Directors of the Company or nor any committee thereof determines shall (A) withdraw or modify, in good faitha manner adverse to the Parent or the Buyer, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, approval or could reasonably be expected to lead to, a Superior Proposal, and (iv) recommendation by the Company's Board of Directors or any such committee of this Agreement or 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 Merger, (B) below would constitute a breach approve any letter of its fiduciary duties intent, agreement in principle, acquisition agreement or similar agreement relating 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 any Acquisition Proposal or otherwise cooperate with (C) approve or assist or participate in, or facilitate, recommend any such discussions or negotiationsAcquisition Proposal; 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 Company’s Board of Directors may, after paying the termination fee set forth in Section 9.3, take any action specified in (A), (B) or (C) in the event that, prior to the approval of this Agreement and the transactions contemplated hereby by the shareholders of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) Company, (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)’s Board of Directors determines in good faith, 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, after it has received a Superior Proposal and/or and after it has received advice from outside counsel that the failure to do so would result in a reasonable possibility that the Company’s Board of Directors would breach its fiduciary duty under applicable law, (y) direct the Company has notified the Parent and the Buyer in writing of the determination set forth in clause (x) above, and (z) at least five (5) Business Days following receipt by the Parent and the Buyer of any Persons notice referred to this Agreement, including in clause (y) such Superior Proposal remains a Superior Proposal and the specific provisions Company’s Board of this Section 5.3Directors has again made the determination in clause (x) above.
(ciii) From and after the date hereofThe Company agrees that, 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 (it, its Affiliates, and in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposaltheir respective directors, which notification shall include (i) a copy officers, employees, agents and representatives of the applicable written Acquisition Proposal foregoing, shall immediately cease and cause to be terminated any existing activities, discussions and negotiations with any Person (or, if oralother than the Parent, the material terms Buyer and conditions of such Acquisition Proposaltheir respective representatives) and (ii) the identity of the Third Party making such conducted heretofore with respect to any Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis agrees to advise the Parent, promptly orally and in writing of any inquiries or proposals received by, any such information requested from, and any requests for negotiations or discussions sought to be initiated or continued with, the Company, its Affiliates, or any of their respective directors, officers, employees, agents or representatives of the status of foregoing, in each case from a Person (other than the Parent, the Buyer and their respective representatives) with respect to an Acquisition Proposal or that reasonably could be expected to lead to 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 identity 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) Person making such Acquisition Proposal and or inquiry. The Company shall keep the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except Parent reasonably informed of the status including any change to the extent expressly prohibited by a confidentiality agreement in place as material terms of the date hereof)any such Acquisition Proposal or inquiry.
(div) The During the period from the date of this Agreement through the Effective Time, the Company agrees shall not to release terminate, amend, modify or permit the release waive any provision of any Person from, confidentiality or to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar standstill agreement to which any of the Company or any of its Subsidiaries it 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
No Solicitation. (a) Subject The Company shall, and shall direct its subsidiaries and other affiliates and their respective officers, directors, employees, representatives and agents to, immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to Sections 5.4(b) and any Acquisition Transaction (c) and except as permitted by this Section 5.3hereinafter defined). The Company agrees that, until prior to the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company Effective Time, it shall not, nor and shall the Company not authorize or permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives subsidiaries or any of its Subsidiary’s Representatives toor its subsidiaries' directors, and the Company shall not publicly propose toofficers, employees, agents or representatives, directly or indirectly (other than indirectly, to solicit, initiate or encourage, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to Parent and Purchaser)any merger, (A) solicitliquidation, initiaterecapitalization, facilitate consolidation or knowingly encourage other business combination involving the Company or its subsidiaries or acquisition of 10% or more of any inquiries, proposals capital stock or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to material portion of the businesses, properties, assets or personnel of the Company or its subsidiaries, or any combination of its Subsidiariesthe foregoing (other than the Offer and the Merger) (an "Acquisition Transaction"), or negotiate, explore or otherwise engage in each case for substantive discussions with any person (other than the purpose of encouraging Purchaser, Parent or facilitating an Acquisition Proposal or (Ctheir respective directors, officers, employees, agents and representatives) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) Transaction or enter into any agreement, contract arrangement or commitment understanding requiring the Company it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; and
provided that the Company may, prior to the purchase of Shares pursuant to the Offer, furnish information to, and negotiate or otherwise engage in substantive discussions with, any person who delivers a bona fide, written proposal for an Acquisition Transaction if the Company Board determines in good faith by a majority vote, after consultation with its outside legal counsel and Financial Advisor or another nationally recognized investment banking firm, that (1) such a transaction is reasonably likely to result in a transaction that is superior in comparison to the Offer and the Merger and the terms of this Agreement to the Company's stockholders from a financial point of view and to the Company, taking into account the terms and conditions thereof, the likelihood of consummation and the time required to complete such transaction (a "Superior Proposal"), and (2) failing to take such action would result in a breach of the fiduciary duties of the Company Board under applicable Law, and prior to furnishing non-public information to any such party, the Company (i) shall have entered into a confidentiality agreement containing terms at least as favorable to the Company as those of the Confidentiality Agreement and (ii) shall provide Parent or Purchaser copies of all proposed written agreements, arrangements, or understandings, including the forms of any agreements supplied by third parties, and all applicable financial statements and evidence of any planned financing with respect to such Superior Proposal (and a description of all material oral agreements with respect thereto).
(b) From and after the execution of this Agreement, the Company shallshall immediately advise the Purchaser in writing of the receipt, and shall cause its Subsidiaries todirectly or indirectly, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate of any existing discussions inquiry or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives proposal with respect to an Acquisition Proposal.
(b) Notwithstanding anything Transaction, and of any discussions, negotiations or proposals relating to an Acquisition Transaction, identify the offeror and furnish to the contrary contained Purchaser a copy of any such proposal, if it is in this Agreementwriting, if, at any time prior to the Acceptance Time, (i) the Company receives or a written summary of any such proposal relating to an 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 who Transaction if it is not an officer or director in writing. The Company shall promptly advise Parent of all developments relating to such proposal, including the Company), (iii) the Board results of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 5.3respect thereto.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Danaher Corp /De/)
No Solicitation. (a) Subject to Sections 5.4(b) From and (c) and except as permitted by this Section 5.3, after the date hereof until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company Expiration Date, each Stockholder shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose permit his or her Representatives to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Aa) solicit, initiate, propose, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would could reasonably be expected to lead to, an Acquisition Proposal, (Bb) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or data or provide to any Third Party access to the businesses, properties, assets assets, books or records, or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an with respect to any Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or (Cc) 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) Proposal, or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by Contemplated Transactions or that could otherwise materially impede the ability of Parent and Merger Sub to consummate the Contemplated Transactions, in each case except as permitted pursuant to the terms of the Merger Agreement. It is understood that this Agreement; and
(ii) Agreement limits the Company shall, and shall cause its Subsidiaries to, and shall direct rights of each Stockholder only to the Companyextent that such Stockholder is acting in such Stockholder’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by capacity as a stockholder of the Company, and nothing herein shall be construed as preventing such Stockholder or any of its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained Affiliates acting in this Agreement, if, at any time prior to the 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 who is not its capacity as an officer or director of the Company), or as a trustee or fiduciary of any ERISA plan or trust, from fulfilling the obligations of such office (iii) including, subject to the Board of Directors limitations contained in Section 5.3 and Section 5.4 of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 Merger Agreement, the Company and its Representatives may (without any determination performance of obligations required by the Board fiduciary obligations of Directors of the Company such Stockholder acting solely in its capacity as an officer, director, trustee or fiduciary) and no action taken solely in 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 such capacity as 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 trustee or fiduciary of any Acquisition ProposalERISA plan or trust, 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 be deemed 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawthis Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by the provisions of this Section 5.35.3 set forth below, until the earlier to occur Company agrees that neither it nor any Subsidiary of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives toshall, and that it shall direct and cause its and its Subsidiaries’ officers, employees, and Representatives acting at the Company shall Company’s direction or on its behalf not publicly propose to, directly or indirectly indirectly, (i) solicit, initiate or knowingly encourage or knowingly facilitate any inquiry with respect to, or the making, submission or announcement of, any Alternative Proposal, (ii) enter into, continue or participate in any negotiations with any person (other than Parent and its Representatives) regarding, or furnish any nonpublic information or access to any person (other than Parent and its Representatives) with respect to Parent and Purchaser)to, (A) solicit, initiate, facilitate any Alternative Proposal or knowingly encourage any inquiries, proposals inquiry or offers proposal that constitute, or that would could reasonably be expected to lead to, to an Acquisition Alternative Proposal, (Biii) engage inin discussions regarding an Alternative Proposal with any person (other than Parent and its Representatives) that has made or, continue to the Company’s knowledge, is considering making an Alternative Proposal, except to notify any person that has submitted an Alternative Proposal as to the existence of the provisions of this Section 5.3, (iv) approve, endorse or otherwise participate recommend or propose to approve, endorse or recommend any Alternative Proposal or any person becoming an “interested stockholder” under Section 203 of the DGCL (other than Parent and Merger Sub in connection with the transactions contemplated by this Agreement), (v) enter into any letter of intent or agreement in principle or any agreement providing for any Alternative Proposal (except for confidentiality agreements permitted under Section 5.3(b)), or (vi) agree to do or publicly announce an intention to do any of the foregoing other than in compliance with this Agreement. The Company shall immediately cease any discussions or negotiations with any Third Party regarding person (other than Parent and its Representatives) with respect to an Acquisition Proposal, Alternative Proposal or furnish potential Alternative Proposal and promptly terminate access granted to any Third Party information third party or provide its Representatives to any Third Party access electronic data room maintained by the Company or its Subsidiaries with respect to the businesses, properties, assets or personnel of transactions contemplated by this Agreement (and in any event within thirty-six (36) hours following the date hereof). The Company and its Subsidiaries shall not voluntarily release any third party that entered into a confidentiality agreement with the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle Subsidiaries with respect to an Acquisition a possible Alternative Proposal from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any such agreement or (y) any confidentiality provision in any such agreement other than an Acceptable Confidentiality Agreement) or enter into any agreementthan, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalclause (x), to the extent the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors and outside legal counsel, the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(b) Notwithstanding anything the limitations set forth in Section 5.3(a) and subject to Section 5.3(c), if the Company receives an Alternative Proposal prior to obtaining Company Stockholder Approval that did not result from a material breach of Section 5.3 with respect to which the Board of Directors of the Company determines in good faith, after consultation with its outside financial advisors and outside legal counsel, constitutes or could reasonably be expected to result in a Superior Proposal, the Company may take the following actions: (x) furnish nonpublic information to the contrary contained third party (including such third party’s Representatives) making such Alternative Proposal, if, prior to so furnishing such information, the Company receives from the third party an executed agreement having provisions requiring such party to keep such information confidential that are substantially similar to the comparable confidentiality provisions of the Confidentiality Agreement (it being understood that such agreement need not have comparable standstill provisions) (provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent or its Representatives), and (y) engage in discussions or negotiations with the third party (including such third party’s Representatives) with respect to the Alternative Proposal.
(c) The Company will promptly (within thirty-six (36) hours) notify Parent orally and in writing of the receipt of any Alternative Proposal and shall, in any such written notice to Parent, include copies of any written materials submitted in connection with such Alternative Proposal (provided that, if required by any confidentiality agreement entered into with the person making such proposal prior to the date hereof, the Company may exclude or redact the identity and other identifying information regarding the person making such proposal), a summary of any material terms of such Alternative Proposal that were conveyed orally and indicate the identity of the person making such proposal (to the extent not prohibited by any confidentiality agreement entered into with such person prior to the date hereof) and the material terms and conditions of such proposal and thereafter shall promptly (within thirty-six (36) hours) keep Parent reasonably informed on a current basis of any material change to the terms of any such Alternative Proposal. The Company agrees that it and its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with or otherwise complying with this Section 5.3.
(d) Except as expressly permitted by this Section 5.3(d), the Board of Directors of the Company shall not (i) withdraw, withhold, qualify or modify in a manner adverse to Parent or Merger Sub, or resolve to or publicly propose to withdraw, withhold, qualify or modify in a manner adverse to Parent or Merger Sub, the Recommendation, (ii) approve or publicly propose to approve any letter of intent, agreement in principle, acquisition agreement or other agreement (other than a confidentiality agreement pursuant to Section 5.3(b)) relating to any Alternative Proposal, (iii) approve or recommend, or resolve to or publicly propose to approve, endorse or recommend, any Alternative Proposal or a definitive agreement providing for an Alternative Proposal (a “Company Acquisition Agreement”), (iv) fail to include in the Proxy Statement the Recommendation, (v) fail to recommend against any Alternative Proposal (including by taking no position or a neutral position with respect to such Alternative Proposal) that is a tender or exchange offer subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) business days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender or exchange offer or (vi) fail to publicly reaffirm the Recommendation within ten (10) business days of Parent’s written request to do so following the public disclosure of an Alternative Proposal (other than an Alternative Proposal involving a tender or exchange offer addressed in clause (v)) (provided, however, that the Board of Directors of the Company shall only be required to make such reaffirmation on one occasion with respect to any one Alternative Proposal (with each material amendment to the price or terms of such Alternative Proposal triggering one additional Parent right to request reaffirmation)) (any of the foregoing actions in clauses (i) through (vi), a “Change of Recommendation”). Notwithstanding anything in this Agreement, ifAgreement to the contrary, at any time prior to the Acceptance Time, (i) receipt of the Company receives a written Acquisition Stockholder Approval, in response to an Alternative Proposal from a Third Party, (ii) such Acquisition Proposal that did not result from a material breach of this Section 5.3 (except for any immaterial breach 5.3, if the Board of this Section 5.3 by a Representative Directors of the Company who is not an officer or director of determines in good faith, after consultation with its financial advisors and outside legal counsel, that (1) such Alternative Proposal constitutes a Superior Proposal and (2) the Company)failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then (iiix) the Board of Directors of the Company may effect a Change of Recommendation and/or authorize or cause the Company to take the actions in the following clause (y), and/or (y) the Company may, notwithstanding anything in this Agreement to the contrary, terminate this Agreement and concurrently with such termination enter into a Company Acquisition Agreement with respect to such Superior Proposal, provided that prior to taking any committee thereof determines such action: (A) the Company provides Parent four (4) business days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Superior Proposal that is specified in Section 5.3(b) (it being understood that each time any material revision or amendment to the terms of the Alternative Proposal determined to be a Superior Proposal is made, the four (4) business day period shall be extended for an additional three (3) business days after notification of such change in accordance with Section 5.3(b) and this Section 5.3(d) to Parent); (B) during the applicable period described in clause (A) (the “Takeover Notice Period”), the Company considers and discusses with Parent in good faith any adjustments or modifications to the terms of this Agreement proposed by Parent; and (C) at the end of the Takeover Notice Period, the Board of Directors of the Company again makes the determination in good faith, after consultation with the Company Financial Advisor and its outside legal counselcounsel and financial advisors (and after taking into account any adjustments or modifications proposed by Parent during the Takeover Notice Period), that such Acquisition the Alternative Proposal constitutes, or could reasonably continues to be expected to lead to, a Superior Proposal. Notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company may, at any time prior to the receipt of the Company Stockholder Approval, effect a Change of Recommendation in response to an Intervening Event if: (i) the Company provides Parent four (4) business days’ prior written notice of its intention to take such action, which notice shall include all material information with respect to any such Intervening Event and a description of the Board of Directors of the Company’s rationale for such action; (ii) during such four (4) business day period described in clause (x), the Company considers and discusses in good faith with Parent and its Representatives any adjustments or modifications to the terms of this Agreement; and (ivz) at the end of the four (4) business day period described in clause (x), the Board of Directors of the Company determines in good faith after consultation with its financial advisors and outside legal counsel (after taking into account any adjustments or modifications to the terms of this Agreement proposed by Parent during the period described in clause (x)) that the failure to take the actions referred such action would reasonably be expected to in clause (A) or (B) below would constitute a breach of be inconsistent with its fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company may .
(Ae) 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 Nothing contained 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 this Agreement and (2) will promptly provide to Parent any material non-public information concerning shall prohibit the Company or its Subsidiaries Board of Directors from disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or access from issuing a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act pending disclosure of its position thereunder; provided to that any such Third Party which was not previously provided to Parent. Notwithstanding anything disclosure that constitutes or contains a Change of Recommendation shall be subject to the contrary contained provisions of Section 5.3(d) (it being understood, for the avoidance of doubt, that a disclosure that constitutes only a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed to be a Change of Recommendation).
(f) As used in this Agreement, the Company and its Representatives may “Alternative Proposal” shall mean any bona fide proposal or offer made by any person or group of related persons (without any determination other than a proposal or offer by the Board of Directors of the Company Parent or any committee thereof or consultation with the Company Financial Advisor or outside legal counselof its Subsidiaries) (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 (ormerger, if oralreorganization, 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 developmentsshare exchange, discussions or negotiations regarding any such Acquisition Proposalconsolidation, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto)business combination, 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 fromrecapitalization, or to waive or permit the waiver or termination of any provision ofdissolution, any confidentiality, “standstill” liquidation or similar agreement to which any of transaction involving the Company or any of its Subsidiaries is pursuant to which any person or group of related persons would beneficially own or control, directly or indirectly, twenty percent (20%) or more (on a partynon-diluted basis) of Company Common Stock, (ii) the acquisition by any person of a business or assets (including any capital stock or other than to securities) that constitutes or includes twenty (20%) or more of the extent the Board of Directors consolidated assets, net revenues or net income of the Company and its Subsidiaries, taken as a whole, (iii) the issuance to or acquisition by any person of twenty percent (20%) (on a non-diluted basis) or more of the outstanding shares of Company Common Stock or (iv) a tender offer, exchange offer or any committee thereof determines other transaction or series of transactions that, if consummated, would result in good faithany person or group of related persons, after consultation with directly or indirectly, beneficially owning or having the right to acquire beneficial ownership of capital stock or other equity interests representing twenty percent (20%) or more (on a non-diluted basis) of Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable LawCommon Stock.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Varian Medical Systems Inc)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by Section 1.3(d)(i) or this Section 5.35.2, until the earlier to occur Company will not, and will cause the other Acquired Companies, the officers and directors of the Acceptance Time or Acquired Companies and the termination of this Agreement pursuant Company’s financial advisor not to, and will use its reasonable best efforts to Section 8.1cause its other representatives not to:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage or knowingly facilitate any inquiriesinquiry, proposals submission or offers announcement of, any Acquisition Proposal or any proposal that constitutewould reasonably be expected to lead to any Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(ii) furnish any information regarding the Acquired Companies to any Person in response to or in a manner that would reasonably be expected to lead to, or knowingly in connection with, an Acquisition Proposal; or
(iii) other than informing Persons of the existence of the provisions of this Section 5.2, enter into, participate or engage in or continue to participate or engage in any discussions or negotiations with any Person regarding, with respect to, or that would reasonably be expected to lead to, an any Acquisition Proposal; or
(iv) agree, (B) engage in, continue propose or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalresolve to take, or furnish to take, any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, terminate or fail to consummate the transactions contemplated actions prohibited by this Agreement; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, clauses (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 who is not an officer or director of the Company), through (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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; above. provided, however, that the Company (1) will notthat, 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 notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (without engage in any determination by the Board of Directors of the Company such discussions or negotiations and provide any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt of an such information in response to a bona fide written Acquisition Proposal from a Third Party that if (A) such bona fide written Acquisition Proposal did not result from a breach of this Section 5.3 5.2(a) or Section 5.2(c) (except for in each case, other than any immaterial breach of this Section 5.3 by a Representative of that is immaterial), (B) prior to providing any material non-public information regarding the Company who is not an officer or director of the Company), contact such Third Party solely to any third party in order response 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 hereofProposal, the Company shall as promptly as practicable receives from such third party (and or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are no less favorable to the Company, in the aggregate, than those contained in the Confidentiality Agreement (it being understood, however, that such confidentiality agreement need not contain any event within twenty-four standstill provision), (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 (iiC) 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 outside legal counsel and its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal and (D) the Company Financial Advisor and Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so take such action would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Legal Requirements. Prior to or within 48 hours after providing any material non-public information to such third party, the Company shall make such material non-public information available to Parent (to the extent such material non-public information has not been previously made available to Parent or any of Parent’s Representatives).
(b) If the Company receives an Acquisition Proposal, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal) notify Parent in writing of such Acquisition Proposal (which notification shall include the identity of the Person making or submitting such Acquisition Proposal and the material terms and conditions thereof), and shall thereafter keep Parent reasonably informed, on a reasonably current basis, as to the status of such Acquisition Proposal.
(c) The Company shall, and shall cause the other Acquired Companies, the officers and directors of the Acquired Companies and the Company’s financial advisor to, and shall use its reasonable best efforts to cause its other representatives to:
(i) immediately cease and cause to be terminated any existing solicitation of, or negotiations or discussions with, any Person relating to any Acquisition Proposal;
(ii) terminate all access granted to any such Person and its Representatives to any physical or electronic dataroom; and
(iii) within five business days following the date hereof, request that any such Person and its Representatives contemplated in clause (ii) above promptly return to the Company or destroy (subject to any exceptions in any applicable confidentiality agreement) any non-public information concerning the Acquired Companies that was previously furnished or made available to such Person or any of its Representatives by or on behalf of the Company.
(d) Nothing contained in this Section 5.2 or elsewhere in this Agreement shall prohibit the Company, the Company Board or their Representatives from (i) taking and disclosing to the stockholders of the Company 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; provided that any such disclosure does not contain an express Change in Recommendation; or (ii) making any other disclosures that the Company Board determines in good faith the failure to make would reasonably likely be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Legal Requirements; provided, however, that the Company Board shall not effect any express Change in Recommendation except in accordance with Section 1.3(d), it being acknowledged and agreed that the foregoing actions, other than as described in clause (i) of this Section 5.2(d) (which shall not, in and of itself, constitute a breach of Change in Recommendation), may constitute a Change in Recommendation if it otherwise satisfies the directors’ fiduciary duties under Applicable Lawdefinition thereof.
Appears in 1 contract
Sources: Merger Agreement (Rosetta Stone Inc)
No Solicitation. (a) Subject to Sections 5.4(bThe Company agrees that neither the Company nor any of its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
Company shall, (i) the Company shall notinitiate, nor shall the Company permit any of its Subsidiaries tocontinue, nor shall the Company authorize any of its Representatives solicit or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose toencourage, directly or indirectly indirectly, any inquiries or the making of any proposal or offer (other than including, without limitation, any proposal or offer to shareholders of the Company) with respect to a merger, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or equity securities of, the Company involving any person other than Parent and Purchaser(any such proposal or offer being hereinafter referred to as an "COMPANY ACQUISITION PROPOSAL"), or (Aii) solicit, initiate, facilitate or knowingly encourage engage in any inquiries, proposals or offers that constitutenegotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Company Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Company Acquisition Proposal or enter into any agreement or understanding with any other person or entity with the intent to effect any Company Acquisition Proposal. Notwithstanding the foregoing, prior to the First Closing Date the Company may, in the event that would a third party that has made (and not withdrawn) a bona fide Company Acquisition Proposal that the Company Board reasonably be expected concludes in good faith constitutes, or is likely to lead to, an Acquisition a Company Superior Proposal, (Bi) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or such third party and/or (ii) furnish to any Third Party such third party nonpublic information or provide relating to any Third Party access Company pursuant to a confidentiality agreement with terms no less favorable to Company than those contained in the businessesConfidentiality Agreement; provided, properties, assets or personnel of the Company or any of its Subsidiaries, that in each case for (x) neither Company nor any representative of Company shall have violated any of the purpose of encouraging or facilitating an Acquisition Proposal or restrictions set forth in this Section 4.3, (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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(iiy) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines reasonably concludes in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, that in light of such Company Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure to take such action would be reasonably expected to be a violation of the actions fiduciary obligations of the Company Board to the Company's shareholders, and (z) contemporaneously with furnishing any such information to such person or group, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by Company to Parent). The Company will take all necessary steps to inform the individuals or entities referred to in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders first sentence hereof of the obligations undertaken in this Section 4.3. The Company under Applicable Lawwill notify Parent promptly, then orally and in writing (including the Company may (A) furnish information names of any party making, the principal terms of, 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 any written materials provided 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 facilitateconnection with, any such proposal, request or inquiry), if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or negotiations; provided, however, that continued with 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 Company. Immediately following 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 execution of this Agreement, the Company will request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any portion thereof to return all confidential information heretofore furnished to such person by or on behalf of the Company. The Company will keep Parent fully and its Representatives may promptly informed of the status and details (without including amendments or proposed amendments) of, and will promptly provide copies of any determination by written materials provided in connection with, any such request, proposal or inquiry.
(b) For purposes of this Agreement, "COMPANY SUPERIOR PROPOSAL" means any bona fide Company Acquisition Proposal (1) to acquire, directly or indirectly, at least a majority of the Shares then outstanding, or all or substantially all of the assets of the Company, (2) that contains terms and conditions that the Board of Directors reasonably determines in good faith (after consultation with its financial advisor) to be more favorable from a financial point of view to the Company's shareholders than the Offer, (3) that the Company or any committee thereof or Board reasonably determines in its good faith judgment (after consultation with the Company Financial Advisor or outside its legal counsel) to be reasonably capable of being completed (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 taking into account all legal, financial, regulatory and other aspects of the Company who is not an officer or director of proposal and the Companyperson making the proposal), 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 (ii4) 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 that does not contain any material developments, discussions or negotiations regarding any such Acquisition Proposal, "due diligence" condition 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 for which any of the Company or any of its Subsidiaries financing upon which it 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawconditioned is committed.
Appears in 1 contract
No Solicitation. (a) Subject a. After the date hereof and prior to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the Closing or earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) Agreement, the Company shall not, agrees that neither it nor shall the Company permit any of its Subsidiaries tonor any of the officers and directors of it or its Subsidiaries shall, nor and that it shall the Company not permit its or its Subsidiaries’ officers, directors, employees, agents or representatives (including any investment bankers, attorneys, accountants or other advisors) (collectively, “Representatives”) to (and shall not authorize any of its Representatives or any of its Subsidiary’s Representatives them to, and the Company shall not publicly propose to), directly or indirectly indirectly: (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, facilitate encourage or knowingly encourage facilitate any inquiries, proposals or offers that constituteinquiries with respect to, or that would reasonably be expected to lead tothe making, an submission or announcement of, any Acquisition Proposal, ; (Bii) engage in, continue or otherwise participate in any discussions or negotiations with regarding any Third Party regarding an Acquisition Proposal, or furnish to any Third Party Person any nonpublic information with respect to the Company in connection with such Acquisition Proposal, except to notify such Person of the existence of this Section 5.20; (iii) approve, endorse or provide recommend any Acquisition Proposal; or (iv) enter into any letter of intent or similar document or any contract or understanding contemplating or otherwise relating to any Third Party access Acquisition Proposal or transaction contemplated thereby, except in the case of clauses (ii), (iii) and (iv) to the businessesextent specifically permitted pursuant to Section 5.20(b). Notwithstanding the foregoing, propertiesclauses (a)(i) and (a)(ii) shall not apply during the period of time after an Other Devco Member has provided the Company an ECP Funding Stop Notice (as defined in the LLC Agreement) pursuant to Section 3.7 of the LLC Agreement and during which the parties to the LLC Agreement are negotiating to determine whether to waive the applicable Funding Condition (as defined in the LLC Agreement) or to amend the LLC Agreement pursuant to such Section. The Company and its Subsidiaries will immediately cease, assets and shall cause each of their respective Representatives to cease, any and all existing activities, discussions or personnel negotiations with any third parties conducted heretofore with respect to, or that could reasonably be expected to lead to or contemplate the possibility of, any Acquisition Proposal except to advise such third parties of the existence of the provisions of this Section. Notwithstanding anything herein to the contrary, the Company may attend and make presentations at investor conferences and hold one-on-one discussions with shareholders and analysts. The Company shall, with respect to each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or any of its or their respective Representatives with respect to an such Person’s consideration of a possible Acquisition Proposal, exercise any rights it has to require such Person to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Subsidiaries or any of its or their Representatives to such Person or any of its Subsidiaries or any of its or their Representatives.
(b) b. Notwithstanding anything in Section 5.20(a) to the contrary contained in this Agreementcontrary, if, if at any time prior to the Acceptance TimeShareholder Approval, (i) the Company receives a written an Acquisition Proposal from a Third Party, that the Board of Directors of the Company determines in good faith to be bona fide; (ii) such Acquisition Proposal proposal did not result from a breach by the Company 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), 5.20; (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and its outside legal counselcounsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes, constitutes or could reasonably be expected to lead to, result in a Superior Proposal, ; and (iv) the Board of Directors of the Company determines in good faith faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to take the actions referred to do so would result in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company may (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party Person 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 engage in discussions or negotiations with the Third Party Person making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiationsProposal; provided, however, provided that the Company (1x) will not, and will not permit allow its Subsidiaries or its or their Representatives to, furnish disclose any non-public information except pursuant to an Acceptable such Person without first entering into a confidentiality agreement that contains terms no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement between the Company and ECP, dated as of October 30, 2007 and (2y) will promptly provide to Parent the Purchasers’ Representative any material non-public information concerning the Company or its Subsidiaries or access provided to such Third Party other Person which was not previously provided to Parent. Notwithstanding anything the Purchasers’ Representative.
c. The Company shall as promptly as reasonably practicable (and, in any event, within one Business Day) provide oral and written notice to the contrary contained in this Agreement, Purchasers’ Representative of receipt by the Company and its Representatives may (without of any determination by the Board of Directors of the Company Acquisition Proposal or any committee thereof request for nonpublic information 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 inquiry which could reasonably be expected to lead to, a Superior Proposal and/or (y) direct to 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 of any such Acquisition Proposal, request or inquiry, and the identity of the person making any such Acquisition Proposal, request or inquiry, and shall keep the Purchasers’ Representative reasonably informed of any material modifications or material developments (including any change in price amendments or form of consideration proposed amendments) with respect to such Acquisition Proposal, request or other material amendment thereto)inquiry, including by without limitation, promptly providing a copy the Purchasers’ Representative with copies of material documentation relating thereto that is exchanged between the Third Party (all written Acquisition Proposals, request or its Representativesinquiries, including draft agreements or term sheets.
d. Notwithstanding anything in Section 5.20(a) 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 contrary, at 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 time prior to the extent Shareholder Approval, the Board of Directors of the Company or any committee thereof may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided that the Board of Directors of the Company determines in good faith, after consultation with the Company Financial Advisor and its outside legal counselcounsel and a financial advisor of nationally recognized reputation, that the failure to do so would constitute result in a breach of the directors’ its fiduciary duties to the shareholders of the Company under Applicable applicable Law, and provided, further, that the Board of Directors of the Company may not effect such an Adverse Recommendation Change unless (i) such Superior Proposal did not result from a breach by the Company of this Section 5.20; (ii) the Company has complied in all respects with this Section 5.20, including Section 5.20(c), (iii) the Board of Directors shall have first provided prior written notice to the Purchasers’ Representative (an “Adverse Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and (iv) Purchasers do not make, within five business days after the receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Board of Directors of the Company (after consultation with a financial advisor of national reputation and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal. The Company agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, the Company and its officers, directors and representatives shall negotiate in good faith with the Purchasers’ Representative and its officers, directors, and representatives regarding any revisions to the terms of the transaction contemplated by this Agreement proposed by the Purchasers’ Representative.
e. Nothing contained in this Section 5.20 shall prohibit the Company or the Board of Directors of the Company from complying with its disclosure obligations under U.S. federal or state Law, including taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders); provided that any public disclosure other than a “stop-look-and-listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to the shareholders of the Company) shall be deemed to be an Adverse Recommendation Change unless such other public disclosure contains therein an express statement that the Board of Directors of the Company (i) rejects the applicable Acquisition Proposal or (ii) reaffirms its recommendation that the Company’s shareholders vote in favor of the Shareholder Approval.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as otherwise permitted by this Section 5.35.5, until the earlier to occur Company shall, and shall cause each of its Subsidiaries and the respective directors and officers of the Acceptance Time or Company and each wholly owned Subsidiary to, and shall instruct and use its reasonable best efforts to cause the termination other Representatives of this Agreement pursuant to Section 8.1:
the Company and its Subsidiaries to: (i) immediately cease and cause to be terminated any solicitation, discussions or negotiations with any Persons (other than Parent and its Representatives) that are ongoing with respect to a Company Takeover Proposal or any inquiry, discussion or request that would reasonably be expected to lead to a Company Takeover Proposal, and (ii) promptly (and in any event within five (5) Business Days following the date hereof) request in writing that any third party that has previously executed a confidentiality or similar agreement with respect to a Company Takeover Proposal promptly return to the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize or destroy all non-public information previously furnished to such third party or any of its Representatives by or any on behalf of its Subsidiary’s Representatives to, and the Company shall not publicly propose toor its Representatives in accordance with the terms of such agreement and (iii) not, directly or indirectly (other than with respect to Parent and Purchaser)through intermediaries, (A) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing non-public information relating to the Company or any inquiries, proposals of its Subsidiaries) the making of any proposal or offers offer that constituteconstitutes, or that would reasonably be expected to lead to, an Acquisition a Company Takeover Proposal, (B) conduct, engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party other Person any information in connection with, or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating knowingly encouraging, a Company Takeover Proposal (other than, solely in response to an Acquisition Proposal or unsolicited inquiry, to refer the inquiring Person to this Section 5.5), (C) execute or enter into any binding letter of intent, acquisition agreement, contractmerger agreement, commitment joint venture agreement or agreement in principle similar Contract (whether written, oral, binding or non-binding) with respect to an Acquisition a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into (D) grant any waiver, amendment or release (to the extent not automatically waived, amended or released upon announcement of, or entering into, this Agreement) of any third party under any standstill or confidentiality agreement; provided, contract or commitment requiring that, notwithstanding the foregoing, the Company shall be permitted to abandon, terminate grant a waiver of any “standstill” 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 and its Subsidiaries’ Representatives to, immediately cease and terminate similar obligation of any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives third party with respect to an Acquisition the Company or any of its Subsidiaries to allow such third party to make a Company Takeover Proposal. None of the foregoing shall prohibit the Company or its Representatives from contacting any Person or group of Persons that has made a Company Takeover Proposal after the date hereof solely to ascertain the facts or request the clarification of the terms and conditions thereof so as to determine whether the Company Takeover Proposal constitutes or could reasonably be expect to lead to a Company Superior Proposal or to request that any Company Takeover Proposal made orally be in writing, and any such actions shall not be a breach of this Section 5.5.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time after the date of this Agreement and prior to obtaining the Acceptance TimeRequisite Company Stockholder Approvals, (i) the Company or any of its Representatives receives a bona fide, written Acquisition Company Takeover Proposal from a Third Partyany Person, (ii) such Acquisition Proposal which did not result from a material breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of 5.5, and if the Company who is not an officer or director of the Company), (iii) the Board of Directors (acting upon the recommendation of the Company Special Committee) or any committee thereof the Special Committee determines in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, that such Acquisition Company Takeover Proposal constitutes, constitutes or could reasonably be expected to lead to, to a Company Superior Proposal, Proposal and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure to take such action is reasonably likely to be inconsistent with the actions referred to in clause (A) or (B) below would constitute a breach of its directors’ fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company may Company, its Subsidiaries and their respective Representatives may, (Ai) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making Person who has made such Acquisition Proposal and afford Company Takeover Proposal, including non-public information, if the Company receives from such Third Party access Person an executed confidentiality agreement containing terms that are not materially less restrictive in the aggregate to the businesses, properties, assets other party than those contained in the Confidentiality Agreement (it being understood and personnel of the Company and its Subsidiaries and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making agreed that such Acquisition Proposal regarding such Acquisition Proposal confidentiality agreement need not contain a standstill provision or otherwise cooperate with prohibit the making or assist amendment or participate inmodification of a Company Takeover Proposal) (such confidentiality agreement, or facilitate, any such discussions or negotiationsan “Acceptable Confidentiality Agreement”); provided, however, that the Company (1) will notshall promptly, and will not permit its Subsidiaries or its or their Representatives toin any event within forty-eight (48) hours following the delivery to such Person, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will promptly provide make available to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided or access provided made available to such Third Party which was not Person or its Representatives unless such non-public information has been previously provided to Parentor made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the Person making such Company Takeover Proposal, its Representatives and any prospective debt and equity financing sources regarding such Company Takeover Proposal. Notwithstanding anything In addition to the contrary contained in this Agreement, the Company and its Representatives may (without any determination by the Board 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 Company’s obligations pursuant to 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 Company5.5(c), 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 and Merger Sub if the Company commences furnishing non-public information or commences discussions or negotiations as provided in this Section 5.5(b).
(c) The Company shall promptly (and in no event later than twenty-four (24) hours after receipt) notify Parent in writing in the event that the Company or any of its Representatives receives a Company Takeover Proposal or any Acquisition inquiry, proposal or request that would reasonably be expected to lead to any Company Takeover 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) including the identity of the Third Party Person making the Company Takeover Proposal or such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developmentsinquiry, discussions proposal or negotiations regarding any such Acquisition Proposal, request and the material terms and conditions thereof (including, if applicable, copies of any written requests, proposals or offers, including any change in price or form of consideration or other material amendment proposed term sheets and agreements relating thereto). The Company shall keep Parent reasonably informed, including by providing on a copy of material documentation relating thereto that is exchanged between the Third Party prompt basis (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty in no event later than twenty-four (24) hours after receipt receipt), regarding any material changes to the status and material terms of any such Company Takeover Proposal or inquiry, proposal or offer (and shall provide Parent with a copy of any written documents or agreements delivered to the Company or its Representatives that contain any material amendments thereto or any material change to the scope or material terms or conditions thereof (except or, if not delivered in writing, a summary of any such material amendments or material changes)). The Company agrees that it and its Subsidiaries will not enter into any agreement with any Person subsequent to the extent expressly prohibited by a confidentiality agreement date of this Agreement that prohibits the Company from providing any information to Parent in place as of the date hereof)accordance with, or otherwise complying with, this Section 5.5.
(d) The Except as permitted by this Section 5.5, the Company agrees Board of Directors shall not (i)(A) fail to release include the Special Committee Recommendation and the Company Board Recommendation in the Proxy Statement when disseminated to the Company’s stockholders, (B) withhold, withdraw or modify (or authorize or publicly propose to withhold, withdraw or modify), in any such case in a manner adverse to Parent, the Company Board Recommendation, (C) publicly make any recommendation in support of a tender offer or exchange offer that constitutes a Company Takeover Proposal or fail to recommend against any such tender offer or exchange offer, (D) publicly adopt, approve or recommend, or publicly propose to adopt, approve or recommend, to stockholders of the Company a Company Takeover Proposal or (E) fail to publicly recommend against any Company Takeover Proposal or fail to publicly reaffirm the Company Board Recommendation, in each case, within five (5) Business Days after Parent so requests in writing following a publicly announced Company Takeover Proposal, provided, that Parent may only make such request once with respect to any particular Company Takeover Proposal or any material publicly announced or disclosed amendment or modification thereto (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), or (ii) authorize, cause 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 to enter into any binding letter of intent, memorandum of understanding or agreement (including an acquisition agreement, merger agreement, joint venture agreement or other agreement) with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) (a “Company Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained in this Agreement, prior to, but not after, obtaining the Requisite Company Stockholder Approvals, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee may, in respect of a Company Superior Proposal, either or both (1) make a Company Adverse Recommendation Change or (2) terminate this Agreement in accordance with Section 7.1(f) in order to enter into a definitive agreement for such Company Superior Proposal (in each case, if and only if, prior to taking such action, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law); provided, however, that, prior to taking either such action, (w) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, including the terms and conditions of and the basis for such action, and the identity of the Person making, any such Company Superior Proposal and has contemporaneously provided with such notice to Parent a partycopy of the Company Superior Proposal or any proposed Company Acquisition Agreements (or if not provided in writing to the Company, a written summary of the terms thereof) and a summary of any related financing commitments in the Company’s possession, (x) to the extent requested in writing by Parent, the Company (acting through the Special Committee) has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such four (4) Business Day period concerning any revisions to the terms of this Agreement proposed by Parent, and (y) following the end of such four (4) Business Days’ notice period, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee shall have determined, after consultation with its outside legal counsel, and giving due consideration to the revisions to the terms of this Agreement to which Parent has committed in writing, that the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal (assuming the revisions committed to by Parent in writing were to be given effect), and (z) in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (w) above of this proviso and a new notice period under clause (w) of this proviso shall commence (except that the four (4) Business Day notice period referred to above shall instead be equal to two (2) Business Days) during which time the Company shall be required to comply with the requirements of this Section 5.5(e) anew with respect to such additional notice, including clauses (w) through (z) above of this proviso. Notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries shall enter into any Company Acquisition Agreement unless this Agreement has been terminated in accordance with its terms and the Company Termination Fee has been paid in the manner provided in Section 7.3.
(f) Notwithstanding anything to the contrary contained in this Agreement, other than in connection with a Company Takeover Proposal, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee may, at any time prior to, but not after, obtaining the Requisite Company Stockholder Approvals, make a Company Adverse Recommendation Change in response to an Intervening Event if, prior to taking such action, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, provided, however, that, prior to taking such action, (i) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, and specifying in reasonable detail the Intervening Event and the potential reasons that the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee is proposing to effect a Company Adverse Recommendation Change, (ii) to the extent requested in writing by Parent, the Company (acting through the Special Committee) has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such four (4) Business Day period to enable Parent to propose revisions to the terms of this Agreement such that it would cause the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee not to make such Company Adverse Recommendation Change, and (iii) following the end of such four (4) Business Days period, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee shall have considered in good faith any revisions to the terms of this Agreement to which Pa▇▇▇▇ ▇as committed in writing, and shall have determined, after consultation with its outside legal counsel (assuming the revisions committed to by Parent in writing were to be given effect), that the failure to make a Company Adverse Recommendation Change is reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Nothing contained in this Section 5.5 shall prohibit the Company or the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee from complying with its disclosure obligations under applicable Laws, the Corporations Act, the ASX Listing Rules or any United States federal or state Law with regard to a Company Takeover Proposal, including (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation MA promulgated under the Exchange Act or (ii) making any committee thereof “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act if, in either case, the Company Board of Directors (acting upon the recommendation of the Special Committee) or the Special Committee, as applicable, determines in good faith, after consultation with outside legal counsel (which shall include the Company Financial Advisor and Special Committee’s outside legal counsel), that the failure to do so would constitute a breach of is reasonably likely to be inconsistent with the directors’ fiduciary duties under Applicable applicable Law or obligations of the Company or the Company Board of Directors or the Special Committee, as applicable, under applicable federal securities Law; provided, however, that this Section 5.5(g) shall not permit the Company Board of Directors to effect a Company Adverse Recommendation Change except to the extent otherwise permitted by this Section 5.5.
(h) For purposes of this Section 5.
Appears in 1 contract
Sources: Merger Agreement (Keypath Education International, Inc.)
No Solicitation. (ai) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, From the date hereof until the earlier to occur of the Acceptance Time or (A) the termination of this Agreement pursuant to in accordance with Section 8.1:
9 hereof and (iB) the Company shall notClosing Date, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, Targeted and the Company shall will not publicly propose (subject to the exceptions described herein), directly or indirectly, and will not authorize or permit any affiliate, officer, director, employee, shareholder, representative or agent of Targeted or the Company to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ax) solicit, initiate, facilitate invite, assist, facilitate, promote or knowingly encourage any inquiries, proposals or offers that constitutefrom, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue entertain or otherwise participate in any enter into discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access other person relating to the businesses, properties, assets or personnel acquisition of the Company common shares or any other securities of the Company, any amalgamation, merger or other form of business combination involving the Company, any sale, lease, exchange or transfer of all or a substantial portion of the assets of the Company, or any takeover bid, reorganization, recapitalization, liquidation or winding-up of or other business combination or transaction involving the Company with any person other than Parent or any of its Subsidiariesaffiliates (each, in each case for the purpose an "ACQUISITION TRANSACTION" and any offer or proposal relating to any transaction or series of encouraging or facilitating related transactions involving an Acquisition Proposal Transaction, an "ACQUISITION PROPOSAL") or (Cy) enter into any letter of intent, agreement, contract, commitment intent or similar document or any contractual agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring contemplating or otherwise relating to any Acquisition Proposal. Targeted and the Company to abandonwill ensure that its affiliates, terminate officers, directors, employees, shareholders, representatives and agents, including any financial or fail to consummate other advisors or representatives retained by it are aware of the transactions contemplated provisions of this Section 6(h) and Targeted and the Company will be responsible for any breach of this Section 6(h) by this Agreement; andany of the foregoing and any such breach shall be considered a breach by Targeted and the Company.
(ii) Notwithstanding the foregoing, provided that there has been no breach of this Section 6(h) and the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to Targeted has received an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a unsolicited written Acquisition Proposal from a Third Partythird party, the Board of Directors of Targeted (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 who is not an officer or director of the Company"TARGETED BOARD"), (iii) the Board of Directors of the Company or any committee thereof determines in good faith("COMPANY BOARD"), after consultation with Targeted and the Company Financial Advisor are not prohibited by this Section 6(h) from:
(A) considering, negotiating and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, providing information and (iv) the Board of Directors disclosure in respect of the Company determines if the Targeted Board and the Company Board determine in good faith (after consultation with outside legal counsel appropriately considering all relevant factors) 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 unsolicited Acquisition Proposal and afford such Third Party access is, or is reasonably likely 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 result 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 nona "SUPERIOR TRANSACTION". For - 50 -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 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the The Company shall not, nor shall it authorize or permit, any Subsidiary of the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s or their respective Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, encourage, knowingly facilitate or knowingly encourage induce any inquiries, proposals or offers that constituteinquiry with respect to, or the making, submission or announcement of, any Company Alternative Proposal, (ii) participate in any negotiations regarding, or furnish to any person any nonpublic information with respect to, any Company Alternative Proposal or in response to any inquiries or proposals that would reasonably be expected to lead toto any Company Alternative Proposal (except to the extent specifically permitted pursuant to this Section 5.4), an Acquisition (iii) engage in discussions with any person with respect to any Company Alternative Proposal, except to notify such person as to the existence of the provisions of this Section 5.4 and except to the extent specifically permitted under this Section 5.4, (Biv) engage inapprove, continue endorse or otherwise participate in recommend any discussions or negotiations with any Third Party regarding an Acquisition Company Alternative Proposal, or furnish to any Third Party information or provide to any Third Party access except to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal extent specifically permitted under this Section 5.4 or (Cv) enter into any letter of intentintent or similar document or any agreement or commitment providing for, agreement, contract, commitment or agreement in principle with respect to an Acquisition any Company Alternative Proposal (other than an Acceptable Confidentiality Agreementexcept for confidentiality agreements specifically permitted under Section 5.4(c) or enter into any agreement, contract or commitment requiring and except to the extent specifically permitted under this Section 5.4). The Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shallshall immediately terminate, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ and their Representatives toto immediately terminate, immediately cease and terminate any existing all discussions or negotiations negotiations, if any, that are ongoing as of the date hereof with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives third party with respect to an Acquisition a Company Alternative Proposal.
(b) Notwithstanding anything Promptly after receipt of any Company Alternative Proposal, the Company shall notify Parent of its receipt of such Company Alternative Proposal, which notice shall include the identity of the third party making such Company Alternative Proposal, a description of the material terms and conditions of such Company Alternative Proposal, and copies of any substantive written communications and documents relating to such Company Alternative Proposal received by the contrary contained in this Agreement, if, at any time prior to Company from the Acceptance Time, third party making such Company Alternative Proposal.
(ic) If the Company receives a written Acquisition Company Alternative Proposal from which (i) constitutes a Third Party, Company Superior Proposal or (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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith faith, after consultation with its outside financial and legal counsel that advisors, after the failure to take taking of any of the actions referred to in either of clause (Ax) or (By) below would constitute below, could reasonably be expected to result in a breach of its fiduciary duties to the shareholders of the Company under Applicable LawSuperior Proposal, then the Company may take the following actions: (Ax) furnish nonpublic information and data with respect to the third party making such Company Alternative Proposal, if, and its Subsidiaries only if, prior to so furnishing such information to the Third Party making such Acquisition Proposal third party, the Company receives from the third party an executed confidentiality agreement on terms substantially the same as the Confidentiality Agreement and afford such Third Party access to the businesses, properties, assets and personnel Company provides copies of the Company and its Subsidiaries same such information to Parent, unless such information has previously been provided to Parent, and (By) enter into, maintain and participate engage in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate third party with or assist or participate in, or facilitate, any such discussions or negotiations; provided, however, that respect to the Company Alternative Proposal.
(1d) 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 In response to the contrary contained in this Agreementreceipt of a Company Superior Proposal, the Company and its Representatives may (without any determination by the Board of Directors of the Company may withdraw, amend or any committee thereof or consultation with modify the Company Financial Advisor or outside legal counselRecommendation (a “Company Change of Recommendation”) (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 has concluded in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, that that, in light of a Company Superior Proposal, the failure of the Board of Directors of the Company to do so effect a Company Change of Recommendation would constitute be reasonably likely to result in a breach by the directors of their fiduciary obligations to the Company’s stockholders under applicable Law.
(e) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, if, in the good faith judgment of the directors’ Company’s Board of Directors, after consultation with its outside legal and financial advisors, such disclosure is required in order for the Board of Directors to comply with its fiduciary duties obligations, or is otherwise required, under Applicable applicable Law.
(f) As used in this Agreement, “Company Alternative Proposal” shall mean any inquiry, proposal or offer made by any person prior to the receipt of the Company Stockholder Approval (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) the acquisition of the Company by merger, consolidation, recapitalization, business combination or similar transaction, or for a “merger of equals” with the Company; (ii) the acquisition by any person of twenty-five percent (25%) or more of the assets of the Company and its Subsidiaries, taken as a whole; or (iii) the acquisition by any person of twenty-five percent (25%) or more of the outstanding shares of Company Common Stock.
Appears in 1 contract
Sources: Merger Agreement (Samsonite Corp/Fl)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by in this Section 5.36.03, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) from and after the date of this Agreement, the Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, immediately cease any solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Competing Proposal and to request to have destroyed or returned to the Company any confidential information that has been provided to any Person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal and (ii) during the Pre-Closing Period, the Company shall not, nor shall cause the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall Representative not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) solicit, initiate, facilitate solicit or knowingly encourage or facilitate (including by way of furnishing information) any inquiriesinquiry, proposals proposal, indication of interest or offers offer that constituteconstitutes, or that would reasonably be expected to lead to, an Acquisition the submission of any Competing Proposal, (B) engage infurnish any information regarding the Company or any Company Subsidiary to any third party in connection with or in response to a Competing Proposal, continue except to notify such third party of the restrictions of this Section 6.03, (C) initiate, solicit, knowingly encourage or otherwise facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, any third party with respect to any Competing Proposal, (D) approve or recommend, or propose to approve or recommend, a Competing Proposal or (E) agree to do any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access Person subsequent to the businessesdate of this Agreement, properties, assets or personnel and none of the Company or any of its SubsidiariesCompany Subsidiary is party to any Contract, in each case for the purpose of encouraging case, that prohibits or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle restricts compliance with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSection 6.03.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time following the date of this Agreement and prior to receipt of the Acceptance TimeCompany Shareholder Approval, (i) the Company receives a written Acquisition Competing Proposal from a Third Party, (ii) such Acquisition Proposal Person 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 6.03 and that the Company who is Board believes in good faith to be bona fide, the Company and its Representatives may contact such Person solely to clarify any textual ambiguity contained in the written Competing Proposal (and not an officer to engage in any discussion or director negotiation of the Companysuch Competing Proposal), and if (iiii) the Company Board of Directors of the Company or any committee thereof determines in good faith, faith (after consultation with the Company Financial Advisor its financial advisors and outside legal counsel, ) that such Acquisition Competing Proposal constitutes, constitutes or could reasonably be expected to lead to, to a Superior Proposal, and (ivii) the Company Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal counsel counsel) that the failure to take the actions referred to in clause clauses (A) or and (B) below of this sentence would constitute be reasonably expected to result in a breach of its fiduciary duties to the shareholders of the Company Shareholders under Applicable applicable Law, then the Company may (A) furnish information and data with respect to the Company and its the Company Subsidiaries to the Third Party Person making such Acquisition Competing Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries representatives and (B) enter into, maintain and participate in discussions or negotiations with the Third Party Person making such Acquisition Competing Proposal and its representatives regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiationsCompeting Proposal; provided, however, that (x) the Company (1) will shall not, and will shall cause the Company Subsidiaries and the Company Representatives not permit its Subsidiaries or its or their Representatives to, furnish disclose any non-public material nonpublic information except pursuant regarding the Company to such Person without first entering into 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 with 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 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 Person; (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 will keep Parent reasonably informed, on a prompt basis (and in any event within twenty-four (24) hours) notify Parent hours thereafter), 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 any Competing Proposal that it receives and of any material amendments or material developments with respect to such Competing Proposal (including any material changes thereto and including by providing copies of any Acquisition Agreement or revised or new Acquisition Agreement and any other relevant transaction documents); and (z) will substantially contemporaneously provide to Parent copies of any material information concerning the Company or the Company Subsidiaries provided or made available by the Company to such other Person (or its representatives) that was not previously provided or made available to Parent.
(c) Except as set forth in Section 6.03(d) or Section 6.03(e), neither the Company nor the Company Board nor any committee thereof shall (i) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Competing Proposal) and , (ii) withhold, withdraw, modify, qualify or amend, or publicly propose to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the identity Company Board Recommendation or fail to include the Company Board Recommendation in the Proxy Statement, (iii) make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Third Party making Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after the written request of Parent following a Competing Proposal that has been publicly announced or publicly disclosed (or such Acquisition Proposal. The fewer number of days as remains prior to the Company shall thereafter keep Parent reasonably informed on a reasonably current basis Shareholders Meeting), (v) resolve, propose or agree to do any of the status foregoing (any action set forth in the foregoing clauses (i), (ii), (iii), (iv) or (v), a “Change of Company Recommendation”), or (vi) allow the Company or any material developmentsof the Company Subsidiaries to enter into any letter of intent, discussions or negotiations regarding any such Acquisition Proposalterm sheet, and the material terms and conditions thereof (including any change memorandum of understanding, agreement in price or form of consideration principle, merger agreement, acquisition agreement or other material amendment thereto)similar agreement relating to, including by providing a copy of material documentation relating thereto or that is exchanged between the Third Party intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or its Representatives) making such Acquisition Proposal and requiring the Company (to abandon, terminate or its Representatives) within twenty four (24) hours after receipt thereof (except fail to consummate the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)Transactions.
(d) The Company agrees not Notwithstanding anything to release or permit the release of contrary contained in this Agreement, at any Person from, or time prior to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any receipt of the Company Shareholder Approval, the Company Board may (x) in response to a Competing Proposal, (1) make a Change of Company Recommendation or any (2) cause the Company to terminate this Agreement in accordance with Section 8.01(h) or (y) in response to an Intervening Event, make a Change of its Subsidiaries Company Recommendation, if:
(i) either (A) a Competing Proposal that did not result from a breach of this Section 6.03 is a party, other than made to the extent the Board of Directors of Company by a third party and such Competing Proposal is not withdrawn, or (B) an Intervening Event has occurred and is continuing;
(ii) the Company or any committee thereof Board determines in good faith, faith (after consultation with the Company Financial Advisor its financial advisors and outside legal counsel) that (x) in the case of a Competing Proposal, that such Competing Proposal constitutes a Superior Proposal, and the failure to do so make a Change of Company Recommendation or terminate this Agreement in accordance with Section 8.01(h), as applicable, in response to such Superior Proposal would constitute be reasonably expected to result in a breach of the directors’ its fiduciary duties to the Company Shareholders under Applicable applicable Law or (y) in the case of an Intervening Event, that the failure to make a Change of Company Recommendation in response to such Intervening Event would be reasonably expected to result in a breach of its fiduciary duties to the Company Shareholders under applicable Law.;
(iii) the Company provides Parent at least four (4) Business Days’ prior written notice (which notice itself shall not constitute a Change of Company Recommendation) of the Company’s intention to make a Change of Company Recommendation or terminate this Agreement in accordance with Section 8.01(h), as applicable (a “
Appears in 1 contract
Sources: Merger Agreement (Zoetis Inc.)
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination Notwithstanding any provision of this Agreement pursuant to the contrary, the Seller agrees that, except as otherwise provided in Section 8.1:
(i) the Company 7.2, neither it nor any of its subsidiaries shall, and that it shall not, nor shall the Company not authorize or permit any of its Subsidiaries toor its subsidiaries’ directors, nor shall the Company authorize any of its Representatives officers, employees, affiliates, agents, investment bankers, financial advisors, attorneys, accountants, brokers, finders, consultants or any of its Subsidiary’s Representatives torepresentatives (collectively, and the Company shall not publicly propose “Representatives”) to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate knowingly encourage or knowingly encourage facilitate (including by way of furnishing or disclosing nonpublic information or permitting access to personnel or facilities) any inquiries, proposals proposals, or the making of any offers (including any offers to the Seller Stockholders) with respect to any Acquisition Proposal, (ii) participate in any discussions or negotiations with, or provide any information to, any Person (other than the Parent) with respect to, or that constitutereasonably may be expected to lead to, an Acquisition Proposal, (iii) enter into any agreement providing for an Acquisition Proposal, or (iv) approve or recommend or consummate an Acquisition Proposal. Table of Contents
(b) Notwithstanding Section 7.2(a), the Seller or its Representatives may furnish or cause to be furnished nonpublic information to, and negotiate or otherwise engage in discussions with, any Person that has made, after the date of this Agreement, a bona fide written unsolicited Acquisition Proposal if and only to the extent that (i) the Acceptance Date has not occurred, (ii) the board of directors of the Seller determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal, (iii) prior to furnishing any nonpublic information to such Person, the Seller shall enter into a confidentiality agreement with such Person that contains confidentiality and other provisions that are substantially similar to and no less favorable to Seller than the Confidentiality Agreement dated as of December 7, 2006 by and between the Parent and Seller (the “Confidentiality Agreement”) and (iv) such Acquisition Proposal did not result from the breach of this Section 7.2; provided, however, that Seller shall promptly provide the Parent with any nonpublic information provided to any third party under this Section 7.2(b) if such information has not previously been provided to the Parent.
(c) Upon execution of this Agreement, the Seller shall cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Seller be returned or destroyed. The Seller shall not modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any confidentiality or standstill provision entered into with any third party.
(d) Except as otherwise provided in Section 7.2(e), neither the board of directors of the Seller nor any committee of the board of directors of the Seller may take, or resolve or agree to take, any of the following actions: (i) withdraw, qualify or modify in a manner adverse to the Parent the Seller Recommendations (or propose publicly to do so), or fail to reaffirm the Seller Recommendations within five (5) Business Days following a request by the Parent or recommend or propose publicly to approve or recommend an Acquisition Proposal (any of the foregoing, including if effected by amendment to the Schedule 14D-9, an “Adverse Recommendation Change”), (ii) authorize or permit the Seller or any of its subsidiaries to enter into any agreement (each, an “Acquisition Agreement”) relating to, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 a Confidentiality AgreementAgreement in compliance with Section 7.2(b)) or enter into (iii) approve any agreement, contract Acquisition Proposal or commitment requiring the Company resolve or agree to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; anddo so. Table of Contents
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(be) Notwithstanding anything to the contrary contained in this Agreement, ifSection 7.2(d), at any time prior to the Acceptance Timepurchase of any share of Seller Common Stock into the Offer, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach board of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative directors of the Company who is not Seller may make an officer or director Adverse Recommendation Change if the board of directors of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company Seller determines in good faith after consultation with outside legal counsel that the failure to take such action would be inconsistent with the actions referred to in clause (A) or (B) below would constitute a breach of its directors’ fiduciary duties to the shareholders of the Company Seller or its Stockholders under Applicable 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 (I) such action may only be taken at a time that is after the Company fourth (4th) Business Day following the Parent’s receipt of written notice from the Seller that the board of directors of the Seller will take such action (which notice will specify the material terms of any applicable Acquisition Proposal) (such notice, an “Adverse Recommendation Change Notice”) and (II) at the end of such period, the board of directors of the Seller determines in good faith, after taking into account all amendments or revisions irrevocably committed to by the Parent and after consultation with its financial advisors, that such Acquisition Proposal remains a Superior Proposal relative to the Transaction, as supplemented by any Counterproposal (an “Adverse Recommendation Change Determination”) (it is agreed that if the third party making the Acquisition Proposal referred to in this sentence modifies a material term of its proposal, the four (4) Business Day period referred to in this sentence shall recommence). During any such four (4) Business Day period, the Parent shall be entitled to deliver to the Seller a counterproposal to such Acquisition Proposal (a “Counterproposal”) and the Seller shall in good faith negotiate such Counterproposal with the Parent. If an Adverse Recommendation Change Determination is not made at the end of such four (4) Business Day period, the Adverse Recommendation Change Notice shall be deemed withdrawn. If the board of directors of the Seller makes an Adverse Recommendation Change in favor of a Superior Proposal at the end of the four (4) Business Day period referred to in the first sentence of this Section 7.2(e), the parties hereby agree that, subject to compliance with this Section 7.2(e) and in order to enable such board of directors to be sufficiently comfortable that the Superior Proposal resulting in such Adverse Recommendation Change will remain available to the Seller when and if this Agreement is terminated, the Seller may enter into a binding agreement with the Person making such Superior Proposal, which agreement (x) may provide that such Person is obligated, on behalf of the Seller, to make the payment required to be made by the Seller pursuant to the relevant provisions of Section 9.2(b) of this Agreement upon the termination of this Agreement and (y) may attach as an exhibit thereto a fully negotiated and executed agreement and plan of merger (a “Conditional Merger Agreement”) relating to such Superior Proposal providing that such Conditional Merger Agreement is binding on the Seller and the Person making such Superior Proposal at that time, but will only become effective on and after (and in no event before) both the (i) termination of this Agreement in accordance with its terms and (ii) the payment by such Person of the fee required to be paid under Section 9.2(b) on behalf of the Seller to the Parent hereto. Notwithstanding the foregoing, the parties further agree that in the circumstances described in the immediately preceding sentence, until the termination of this Agreement in accordance with its terms, (1) will notin no event may the Seller make any SEC or other regulatory filings in connection with the transactions contemplated by such letter agreement and Conditional Merger Agreement until the termination of this Agreement except as required by Law or permitted under Section 7.2(g), 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 the Seller shall otherwise remain subject to Parent any material non-public information concerning all of its obligations under this Agreement (including Section 7.1 and this Section 7.2).
(f) From and after 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 execution of this Agreement, the Company and its Representatives may Seller shall notify the Parent as promptly as practicable (without but in any determination by the Board of Directors event within twenty-four hours) of the Company receipt, directly or indirectly, of any committee thereof inquiries, discussions, negotiations, proposals or consultation expressions of interest 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 constitutesrespect to, or could that may reasonably be expected to lead to, a Superior an Acquisition 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 such Acquisition Proposal (or, if oral, and a summary of the material terms and conditions of such Acquisition Proposal) thereof, including price, and (ii) the identity of the Third Party making such Acquisition ProposalPerson or Persons involved). The Company shall thereafter keep Commencing upon the provision of any notice referred to above, (A) once, and not more than once, each day at mutually reasonably agreeable times, the Seller (or its outside counsel) shall, in person or by telephone, provide the Parent reasonably informed on (or its outside counsel) a reasonably current basis summary of the status progress of negotiations concerning any material developments, discussions or negotiations regarding any such Acquisition Proposal, Proposal and the material terms and conditions thereof resolved or unresolved issues (including any change in the positions of the parties to such negotiations on such issues) related thereto, including material amendments or proposed amendments as to price or form of consideration or and other material amendment thereto), including by providing a copy terms of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making any such Acquisition Proposal and (B) the Company Seller shall, promptly upon receipt or delivery thereof, provide the Parent (or its Representativesoutside counsel) within twenty four with copies of all drafts and final versions (24and any comments thereon) hours after receipt thereof of agreements (except including schedules and exhibits thereto) relating to any such Acquisition Proposal exchanged between 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 Seller or any of its Subsidiaries is a partyRepresentatives, other than to on the extent one hand, and the Board of Directors of the Company person making an Acquisition Proposal or any committee thereof determines in good faithof its Representatives, after consultation with on the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawother hand.
Appears in 1 contract
Sources: Merger Agreement (Xerox Corp)
No Solicitation. (a) Subject The Company shall, and shall cause its Affiliates, Representatives and any other agents to, immediately cease any discussions, negotiations or communications with any party or parties with respect to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:any Alternative Transaction.
(ib) the The Company shall not, nor shall it authorize or permit any Affiliate or Representative of the Company permit any of or its Subsidiaries to, nor shall (i) solicit, initiate or intentionally facilitate or encourage the Company authorize submission of any of its Representatives Alternative Transaction or (ii) participate in any of its Subsidiary’s Representatives todiscussions or negotiations regarding, and the Company shall not publicly propose to, directly or indirectly (other than furnish to any Third Party any information or data with respect to Parent and Purchaser)or provide access to the properties, (A) solicitoffices, initiatebooks, facilitate records, officers, directors or knowingly encourage any inquiries, proposals or offers that constituteemployees of, or take any other action to knowingly facilitate, induce or encourage the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition Proposalany Alternative Transaction. Notwithstanding the foregoing, if prior to the consummation of the Merger (A) the Company has complied with this Section 6.4 and (B) engage in, continue the Company’s board of directors reasonably determines in good faith that an Alternative Transaction constitutes or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition would reasonably be expected to lead to a Superior Proposal, or furnish to any Third Party information or provide to any Third Party access then, to the businesses, properties, assets or personnel extent such action is consistent with the fiduciary obligations of the Company’s board of directors, as determined in good faith by a majority thereof after consultation with the Company’s outside counsel, the Company or any may, subject to the Company’s providing prior written notice to Parent of its Subsidiariesdecision to take such action and compliance by the Company with Section 6.4(d), in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle furnish information with respect to an Acquisition Proposal the Company to, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to a confidentiality agreement (a copy of which shall be provided to Parent for informational purposes only) not materially less favorable to the Company than the confidentiality agreement entered into by and between Parent and the Company.
(c) Neither the Company’s board of directors nor any committee thereof shall (i) withdraw or modify, or propose or resolve to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval and recommendation by the Company’s board of directors of the Merger and this Agreement, the other than an Acceptable Confidentiality Agreementtransaction documents, the transactions contemplated hereby and thereby and the actions taken in connection herewith and therewith, (ii) approve or recommend, or propose or resolve to approve or recommend, any Alternative Transaction, (iii) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into into, any agreementAcquisition Agreement, contract (iv) approve or commitment recommend, or propose or resolve to approve or recommend, or execute or enter into, any agreement requiring the Company it to abandon, terminate or fail to consummate the Merger, this Agreement, any other transaction document or the transactions contemplated hereby or thereby or (v) propose, agree or publicly announce any intention to do any of the foregoing constituting or related to, or that is intended to lead to, any Alternative Transaction (any of the foregoing in clauses (i) through (v), an “Adverse Recommendation Change”). Notwithstanding the foregoing, prior to the consummation of the Merger, in response to a Superior Proposal that was not solicited, initiated, intentionally encouraged, participated in or otherwise facilitated by this Agreement; and
(ii) the Company shallin breach of Section 6.4(b), and shall cause its Subsidiaries to, and shall direct the Company’s board of directors may, if it determines in good faith (after consulting with the Company’s outside legal counsel) that the failure to do so would be inconsistent with the fiduciary duties of the Company’s board of directors to the Company Stockholders under applicable Law, (A) modify, or propose or resolve to modify, in a manner adverse to Parent or Merger Sub, the approvals and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions recommendations of the Company’s board of directors of the Merger or negotiations with any Third Party theretofore conducted the transactions contemplated hereby or by the Company, its Subsidiaries other transaction documents (or their respective Representatives otherwise make any Adverse Recommendation Change) or (B) terminate this Agreement in accordance with respect to an Acquisition ProposalSection 10.1(a)(x).
(d) In addition to the obligations set forth in Sections 6.4(a), (b) Notwithstanding anything to and (c), the contrary contained Company shall advise Parent orally and, if requested by Parent, in this Agreement, if, at any time prior to the Acceptance Time, writing of (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a breach existence 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), (iii) the Board of Directors of the Company Alternative Transaction or any committee thereof determines in good faithoffer, after consultation proposal or inquiry with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, respect to or which could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors to an Alternative Transaction received by any officer or director 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 or, 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 of Directors knowledge 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 Subsidiary, other 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 (yii) 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) Alternative Transaction, and (ii) any amendment or modification thereto, including the identity of the Third Party making Person proposing such Acquisition Proposal. The Alternative Transaction, within one (1) business day following receipt by the Company shall thereafter keep Parent reasonably informed on a reasonably current basis or any officer or director of the status of any material developmentsCompany or, 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 knowledge of the Company or any of its Subsidiaries is a partySubsidiary, any other than to the extent the Board of Directors Representative of the Company of such offer, proposal or inquiry. The Company shall keep Parent fully informed, on a current basis, of the status and material details of any committee thereof determines in good faithsuch offer, after consultation proposal or inquiry. In addition, the Company’s board of directors shall not make an Adverse Recommendation Change or terminate this Agreement for purposes of entering into an agreement with respect to an Alternative Transaction unless (x) the Company Financial Advisor and outside legal counselnotifies Parent, that failure in writing at least three (3) business days before taking such action, of its intention to do so would constitute in response to an offer, proposal or inquiry to enter into an Alternative Transaction that it has determined constitutes a breach Superior Proposal and attaching the most current version of any proposed agreement or a summary of all material terms of any such proposal and the identity of the directors’ fiduciary duties under Applicable Lawofferor, (y) the Company shall have, during such three (3) business day period, negotiated in good faith with Parent with respect to any changes to this Agreement that Parent shall have proposed and (z) Parent does not make, within three (3) business days after its receipt of that written notification, an offer that is at least as favorable to the stockholders of the Company as such Superior Proposal, it being understood that the Company shall not enter into any binding agreement with respect to such Superior Proposal during such three (3) business day period.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) Section 6(b), unless and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement shall have been terminated by either party pursuant to Section 8.1:
(i) the Company shall notArticle VIII hereof, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose totake or cause, directly or indirectly (through representatives, agents or otherwise), any of the following actions with any party other than Pan Pacific or its designees: (i) solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any offer or proposal to acquire all or any part of its business, assets or capital shares whether by merger, consolidation, other business combination, purchase of assets, tender or exchange offer or otherwise, other than an offer or proposal with respect to a sale transaction permitted under Section 5.1 hereof (each of the foregoing, an "Acquisition Proposal"); (ii) disclose, in connection with an Acquisition Proposal, any information or 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 agreement relating to an Acquisition Proposal; or (iv) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitutethe Merger, or that would reasonably be expected to lead to, an Acquisition Proposal, (Bas otherwise required by applicable law. Nothing in this Section 6.3(a) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to shall limit the businesses, properties, assets or personnel ability of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations to sell Assets in accordance with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition ProposalSection 5.1(f) hereof.
(b) Notwithstanding anything the foregoing, in response to the contrary contained in this Agreementa bona fide, ifunsolicited, at any time prior to the Acceptance Time, (i) the Company receives a written Acquisition Proposal from a Third Party, Party (ii) such Acquisition Proposal did that does not result from a breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of 6.3), the Company who is not an officer or director of Board may, and may authorize and permit the Company)'s officers, trustees, employees, financial advisors, representatives, or agents to, (i) provide such Third Party with nonpublic information, (ii) otherwise facilitate any effort or attempt by such Third Party to make or implement such Acquisition Proposal, (iii) the Board of Directors of the Company agree to or recommend or endorse any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constituteswith or by any Third Party, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Pan Pacific, its approval and recommendation of the Company determines Merger and this Agreement, (v) participate in good faith after consultation discussions and negotiations 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 such Third Party making relating to such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of (vi) cause the Company and its Subsidiaries and (B) to 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 into 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 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.agreement
Appears in 1 contract
Sources: Merger Agreement (Pan Pacific Retail Properties Inc)
No Solicitation. (a) Subject to Sections 5.4(b) At all times during the period commencing with the execution and (c) delivery of this Agreement and except as permitted by this Section 5.3, continuing until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.19.1 or Section 9.2 hereof and the Acceptance Time, the Company shall not, and shall cause the Company Representatives and the Company Subsidiaries to not:
(i) the Company shall notinitiate, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiatepropose, facilitate knowingly encourage (including by providing information) or knowingly encourage facilitate the making of any inquiries, proposals proposal or offers offer that constituteconstitutes, or that would could reasonably be expected to lead to, an Acquisition Proposal, ;
(Bii) engage in, continue or otherwise participate in any discussions or negotiations with regarding, or provide any Third Party regarding information or data concerning the Company or any Company Subsidiary to any Person relating to, any Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or furnish provide or waive restrictions on the use of any information or data concerning the Company or any Company Subsidiary to any Person pursuant to any commercial arrangement, joint venture arrangement or other existing agreement or arrangement with the intention to facilitate an Acquisition Proposal; provided that the foregoing shall not prohibit the Company or any Company Subsidiary from providing information or data to a Third Party information as and to the extent required by, and in accordance with, ordinary course of business written Contracts as in effect on the date hereof between the Company and such Third Party, provided that any restrictions on use, confidentiality and similar provisions contained in such Contracts shall be enforced with respect to such Third Party;
(iii) grant any waiver, amendment or provide release under any standstill agreement or Takeover Provision for the purpose of allowing a Third Party to make an Acquisition Proposal (including providing consent or authorization to any Third Party access Person to the businesses, properties, assets make an Acquisition Proposal to any officer or personnel employee of the Company or to the Company Board or any of its Subsidiariesmember thereof);
(iv) approve, in each case for the purpose of encouraging endorse, recommend, execute or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement in principle, merger agreement, contract, commitment acquisition agreement or other similar 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 to abandon, terminate or fail to consummate the transactions Agreement as contemplated by this AgreementSection 7.5(b)) relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; andor
(iiv) resolve or agree to do any of the foregoing. The Company shall, and shall cause its the Company Representatives and Company Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease all discussions and terminate any existing discussions or negotiations with any Third Party theretofore conducted by Person that may be ongoing with respect to any Acquisition Proposal, and promptly thereafter, deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Acquisition Proposal, effective on the date hereof, and, except for (and subject to the terms of Section 7.1(a)) Persons with respect to whom the Company is having discussions regarding a licensing, collaboration, sale or similar arrangement with respect to IL-21 (in which case any restrictions on use, confidentiality and similar provisions contained in any Contracts between the Company or any Company Subsidiary, on the one hand, and such Persons, on the other hand, shall be enforced), the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and the Company Subsidiaries; provided that the foregoing shall not require the Company to request that such Person return or destroy confidential information that the Company or any Company Subsidiary provided to such Person as and to the extent required by, and in accordance with, written Contracts as in effect on the date hereof between the Company and such Person related to the Products of the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalprovided that any restrictions on use, confidentiality and similar provisions contained in such Contracts shall be enforced.
(b) Notwithstanding anything to the contrary contained in Section 7.5(a) but subject to the last sentence of this Section 7.5(b), at any time prior to the Acceptance Time, the Company, the Company Subsidiaries and the Company Representatives may, subject to compliance with this Section 7.5(b):
(i) provide information in response to a request therefor to a Person who has made an unsolicited bona fide written Acquisition Proposal after the date of this Agreement (which Acquisition Proposal does not arise out of any breach of this Section 7.5 excluding any Immaterial Breach) if and only if, prior to providing such information, the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement, provided that the Company shall promptly make available to Parent any information concerning the Company and the Company Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and that was not previously made available to Parent or the Parent Representatives;
(ii) engage or participate in discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal; or
(iii) resolve or agree to do any of the foregoing actions set forth in clauses (i) or (ii); provided that, prior to taking any action described in Section 7.5(b)(i), Section 7.5(b)(ii) or Section 7.5(b)(iii) above, (A) the Company Board shall have determined in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Laws, and (B) the Company Board shall have determined in good faith, based on the information then available and after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal.
(c) Except as expressly provided by Section 7.5(d), at any time after the date hereof, neither the Company Board nor any committee thereof shall:
(i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) in any manner adverse to Parent or Merger Sub, the Company Board Recommendation with respect to the Offer or the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend an Acquisition Proposal, (C) (1) fail to publicly recommend against any Acquisition Proposal within ten (10) Business Days after Parent so requests in writing or (2) fail to publicly reaffirm the Company Board Recommendation within five (5) Business Days after Parent so requests in writing, (D) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such Acquisition Proposal, (E) fail to include the Company Board Recommendation in the Schedule 14D-9, or (F) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.5(b)), it being understood that, for the avoidance of doubt, neither the approval or delivery of a Determination Notice shall be, by itself, deemed a Company Adverse Recommendation Change (any action described in clauses (A) through (F), a “Company Adverse Recommendation Change”); or
(ii) cause or permit the Company or any Company Subsidiary to enter into any acquisition agreement, merger agreement or similar definitive Contract with respect to an Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.5(b)) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, if, at any time prior to the Acceptance Time, (i) if the Company receives has received a bona fide written Acquisition Proposal from a Third Party, (ii) such which Acquisition Proposal did not result from a arise out of any breach of this Section 5.3 (7.5 except for any immaterial breach of this Section 5.3 by a Representative of Immaterial Breach) from any Person that has not been withdrawn and that the Company who is not an officer or director of the Company)Board concludes in good faith constitutes a Superior Proposal, (iiix) the Company Board of Directors of may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, or (y) the Company or any committee thereof may terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(A) the Company Board determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 Financial Advisor financial advisor and outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Laws;
(B) the Company shall have complied with all of its obligations under this Section 7.5 with respect to such Superior Proposal except any Immaterial Breaches;
(C) the Company shall have provided prior written notice (a “Determination Notice”) to Parent at least three (3) Business Days in advance (the “Notice Period”), to the effect that the Company Board has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of any breach of this Section 7.5 except any Immaterial Breach) that the Company Board has concluded in good faith constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board has determined to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to this Section 7.5(d), which notice shall specify the identity of the Person or group of Persons making the Superior Proposal, the material terms thereof and copies of all relevant documents relating to such Superior Proposal;
(D) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a breach Superior Proposal; provided that, in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of this Section 7.5 (including Section 7.5(d)) with respect to such new Determination Notice and the revised Superior Proposal contemplated thereby; and
(E) in the case of any action contemplated by clause (y) of this Section 7.5(d), the Company shall have terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the directors’ fiduciary duties under Applicable Law.Company Termination Fee in accordance with Section 9.4(b)(i); or
Appears in 1 contract
Sources: Merger Agreement (Zymogenetics Inc)
No Solicitation. (a) Subject to Sections 5.4(b) Seller agrees it shall not, and (c) it shall cause each of its Subsidiaries and except as permitted by this Section 5.3its and their respective Affiliates and Representatives not to, until the earlier to occur of the Acceptance Time directly or the termination of this Agreement pursuant to Section 8.1indirectly:
(i) the Company shall notsolicit, nor shall the Company permit initiate or induce or knowingly or intentionally facilitate or encourage any of its Subsidiaries inquiry with respect to, nor shall or the Company authorize making, submission or announcement of, any of its Representatives Acquisition Proposal or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or proposal that would reasonably be expected to lead to, an to any Acquisition Proposal, ;
(Bii) furnish to any Person any information with respect to any Acquisition Proposal;
(iii) participate or engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Person with respect to any Acquisition Proposal, or furnish except to any Third Party information or provide to any Third Party access notify such Person as to the businessesexistence of these provisions;
(iv) approve, properties, assets endorse or personnel of the Company or recommend any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or Proposal; or
(Cv) enter into any letter of intent, intent or similar document or any agreement, contract, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of Seller, the Company, or any of their respective Subsidiaries, whether or not such Person is purporting to act on behalf of Seller, the Company, any of their respective Subsidiaries or otherwise, shall be a breach of this Section 5.3(a).
(b) Seller shall, and shall cause each of its Subsidiaries and its and their respective Affiliates and Representatives to, immediately terminate all discussions or negotiations, if any, with any third party with respect to, or any that would reasonably be expected to lead to or contemplate the possibility of, an Acquisition Proposal. Seller shall promptly (but in no event later than five (5) Business Days following the execution of this Agreement) demand that each Person which has heretofore executed a confidentiality agreement in principle with Seller or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to an such Person’s consideration of a possible Acquisition Proposal (other than an Acceptable Confidentiality Agreementagreements that have expired by their terms) to immediately return or enter into destroy (which destruction shall be certified in writing by such Person to Seller) all confidential information heretofore furnished by Seller, any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, of its Subsidiaries or any of its or their respective Affiliates or Representatives to such Person, the Subsidiaries of such Person or any of its or their Affiliates or Representatives. The parties agree that in no event shall Buyer be deemed an Affiliate of Seller or the Company for purposes of this Section 5.3(b). Section 5.3(b) of the Seller Disclosure Letter sets forth a complete list of any confidentiality agreements with Seller or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives such Person’s consideration of a written possible 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 other than agreements that have expired by a Representative of the Company who is not an officer or director of the Companytheir terms), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 As promptly as practicable (practicable, and in any event within twenty-four (24) hours) notify Parent , after any officer or director of Seller or of the Company knowingly receives or has knowledge of any Acquisition Proposal or any request for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal, which notification Seller shall include (i) a copy of the applicable written Acquisition Proposal (or, if oral, advise Buyer in writing as to the material terms and conditions of such Acquisition Proposal) , request or inquiry, and (ii) the identity of the Third Party Person or group 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, request or inquiry and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing provide a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making all written materials provided in connection with such Acquisition Proposal and the Company (Proposal, request or its Representatives) within twenty four (24) hours after inquiry. After receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof).
Acquisition Proposal, request or inquiry, Seller shall continue to promptly keep Buyer informed in all material respects of the status and details (dincluding notice of all material amendments or proposed material amendments) The Company agrees not to release or permit the release of any Person fromsuch Acquisition Proposal, request or inquiry and shall as promptly as practicable provide to waive Buyer a copy of all written materials subsequently provided in connection with such Acquisition Proposal, request 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawinquiry.
Appears in 1 contract
Sources: Share Purchase Agreement (Health Care Property Investors Inc)
No Solicitation. (a) Subject to Sections 5.4(bThe Company agrees that neither the Company nor any of its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall notinitiate, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives solicit or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose toencourage, directly or indirectly indirectly, any inquiries or the making of any proposal or offer (other than including, without limitation, any proposal or offer to shareholders of the Company) with respect to Parent and Purchaser)a merger, (A) solicit, initiate, facilitate consolidation or knowingly encourage any inquiries, proposals or offers that constitutesimilar transaction involving, or any purchase of all of the assets or equity securities of, the Company involving any person other than Parent (any such proposal or offer being hereinafter referred to as an “Company Acquisition Proposal”). Notwithstanding the foregoing, prior to the Closing Date the Company may, in the event that would a third party that has made (and not withdrawn) a bona fide Company Acquisition Proposal that the Company Board reasonably be expected concludes in good faith constitutes, or is likely to lead to, an Acquisition a Company Superior Proposal, (Bi) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or such third party and/or (ii) furnish to any Third Party such third party nonpublic information or provide relating to any Third Party access Company pursuant to a confidentiality agreement with terms no less favorable to Company than those contained in the businessesConfidentiality Agreement; provided, properties, assets or personnel of the Company or any of its Subsidiaries, that in each case for (x) neither Company nor any representative of Company shall have violated any of the purpose of encouraging or facilitating an Acquisition Proposal or restrictions set forth in this Section 4.4, (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 to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(iiy) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines reasonably concludes in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, that in light of such Company Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure to take such action would be reasonably expected to be a violation of the actions fiduciary obligations of the Company Board to the Company’s shareholders or a breach of any Law (including the Takeover Code), and (z) contemporaneously with furnishing any such information to such person or group, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by Company to Parent). The Company will take all necessary steps to inform the individuals or entities referred to in clause (A) or (B) below would constitute a breach of its fiduciary duties to the shareholders first sentence hereof of the obligations undertaken in this Section 4.4. The Company under Applicable Lawwill notify Parent promptly, then orally and in writing (including the Company may (A) furnish information names of any party making, the principal terms of, 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 any written materials provided 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 facilitateconnection with, any such proposal, request or inquiry), if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or negotiations; provided, however, that continued with 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 Company. Immediately following 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 execution of this Agreement, the Company will request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any portion thereof to return all confidential information heretofore furnished to such person by or on behalf of the Company. The Company will keep Parent fully and its Representatives may promptly informed of the status and details (without including amendments or proposed amendments) of, and will promptly provide copies of any determination by written materials provided in connection with, any such request, proposal or inquiry.
(b) For purposes of this Agreement, “Company Superior Proposal” means any bona fide Company Acquisition Proposal (1) to acquire, directly or indirectly, at least a majority of the Shares then outstanding, or all or substantially all of the assets of the Company, (2) that contains terms and conditions that the Board of Directors reasonably determines in good faith (after consultation with its financial advisor) to be more favorable from a financial point of view to the Company’s shareholders than the Offer, (3) that the Company or any committee thereof or Board reasonably determines in its good faith judgment (after consultation with the Company Financial Advisor or outside its legal counsel) to be reasonably capable of being completed (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 taking into account all legal, financial, regulatory and other aspects of the Company who is not an officer or director of proposal and the Companyperson making the proposal), 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 (ii4) 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 that does not contain any material developments, discussions or negotiations regarding any such Acquisition Proposal, “due diligence” condition 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 for which any of the Company or any of its Subsidiaries financing upon which it 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawconditioned is committed.
Appears in 1 contract
No Solicitation. (a) Subject Except as may relate to Sections 5.4(b) and (c) and except any Qualified Go-Shop Bidder or as permitted by this Section 5.3Sections 7.4(d) and 7.4(e), from the No Shop Period Start Date until the earlier to occur of the Acceptance Time Effective Time, or if earlier, the termination of this Agreement pursuant to Section 8.1:
(i) in accordance with its terms, the Company shall not, nor shall the Company permit any of agrees that it and its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives towill not, and the Company shall will not publicly propose toknowingly permit its or its Subsidiaries’ Representatives, directly to (i) solicit, initiate or indirectly knowingly facilitate or encourage the making by any Person (other than with respect to Parent and Purchaser)its Subsidiaries) of any inquiry, (A) solicit, initiate, facilitate proposal or knowingly encourage any inquiries, proposals offer that constitutes or offers that constitute, or that would reasonably be expected to lead toto any Acquisition Proposal, (ii) enter into discussions or negotiations with any Person in furtherance of an inquiry or to obtain an Acquisition Proposal, or (Biii) engage inenter into any agreement, continue understanding or otherwise participate in arrangement with respect to any Acquisition Proposal. Subject to Sections 7.4(d) and 7.4(e), at the No-Shop Period Start Date, the Company shall take, and shall cause its Subsidiaries to take, all actions reasonably necessary to cause its Representatives to immediately cease any discussions or negotiations with any Third Party regarding an party or parties (other than a Qualified Go-Shop Bidder) with respect to any Acquisition Proposal; provided, or furnish to any Third Party information or provide to any Third Party access to the businesseshowever, properties, assets or personnel of that nothing in this Section 7.4 shall preclude the Company or any of its Subsidiaries, in each case Representatives from contacting any such party or parties solely for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter complying with the provisions of intent, agreement, contract, commitment or the last sentence of this Section 7.4(a). The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in principle connection with respect to its consideration of an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the CompanyQualified Go-Shop Bidder), (iii) the Board of Directors of the Company if any, to return or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that destroy all confidential information heretofore furnished to such Acquisition Proposal constitutes, Person by or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 on behalf 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 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 5.3Subsidiaries.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Gtsi Corp)
No Solicitation. (a) Subject During the Interim Period, to Sections 5.4(b) induce the other parties hereto to continue to commit to expend management time and (c) and except as permitted by this Section 5.3, until the earlier to occur financial resources in furtherance of the Acceptance Time transactions contemplated hereby, no party hereto shall, and each shall cause its Subsidiaries and their Representatives to not, in the case of the Target Company, Holdco and Merger Sub and the Shareholders without the prior written consent of VIH and in the case of VIH, without the prior written consent of the Target Company, directly or the termination of this Agreement pursuant to Section 8.1:
indirectly, (i) solicit, assist, initiate or knowingly facilitate the Company shall notmaking, nor shall the Company permit submission or announcement of, or intentionally encourage, any of Acquisition Proposal, (ii) furnish any non-public information regarding such party or its Subsidiaries toAffiliates (including, nor shall the Company authorize with respect to any of its Representatives Shareholder or any of its Subsidiary’s Representatives tothe Group Companies) or their respective businesses, and the Company shall not publicly propose tooperations, directly assets, Liabilities, financial condition, prospects or indirectly employees to any Person or group (other than a party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constituteto, or that would reasonably could be expected to lead to, an Acquisition Proposal, (Biv) engage inapprove, continue endorse or otherwise participate in recommend, or publicly propose to approve, endorse or recommend, any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information (v) negotiate or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect principle, acquisition agreement or other similar agreement related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything the foregoing, each party may respond to the contrary contained in this Agreement, if, at any time prior to the Acceptance Time, (i) the Company receives a written unsolicited 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, indicating only that such Acquisition Proposal constitutes, or could reasonably be expected party is subject to lead to, a Superior Proposal, an exclusivity agreement and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure is unable 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 provide 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 regarding such party or its Subsidiaries Affiliates or access provided to such Third Party which was not previously provided to Parent. Notwithstanding anything to the contrary contained entertain any proposals or offers or engage in this Agreement, the Company and its Representatives may (without any determination by the Board of Directors of the Company negotiations or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) following the receipt of discussions concerning an Acquisition Proposal from a Third Party that did not result from a breach of for as long as this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of Agreement remains in effect. Each party hereto shall notify 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 other parties as promptly as practicable (and in any event within twentyforty-four eight (2448) hours) notify Parent orally and in writing of the receipt by such party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an 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 any request for non-public information relating to such party or its Affiliates (or with respect to any Shareholder or any 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 Group Companies) in connection with an Acquisition Proposal, and specifying in each case, 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 thereof if in writing or a written summary thereof if oral) and (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty four (24) hours after receipt thereof (except unless prohibited pursuant to the extent expressly prohibited by a confidentiality agreement in place effect as of the date hereof).
(dof this Agreement) The Company agrees not to release the identity of the party making such inquiry, proposal, offer or permit request for information. Each party hereto shall keep the release other parties promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each party hereto shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person fromwith respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawnegotiations.
Appears in 1 contract
Sources: Business Combination Agreement (VPC Impact Acquisition Holdings II)
No Solicitation. (a) Subject Except to Sections 5.4(b) and (c) and except as the extent permitted by this Section 5.3, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.1:
(i) 6.04 neither the Company shall notnor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (its "REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, nor shall the Company authorize otherwise cooperate in any of its Representatives way with, or knowingly assist, participate in, facilitate or encourage any of its Subsidiary’s Representatives toeffort by any Third Party that is seeking to make, and the Company shall not publicly propose toor has made, directly an Acquisition Proposal or indirectly (other than iii) grant any waiver or release under any standstill or similar agreement with respect to Parent and Purchaser), (A) solicit, initiate, facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel class of equity securities of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company6.02 and 6.03(a), (iii) the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party that has made a Superior Proposal which did not result, in whole or in part, from a breach of Section 6.03(a), (ii) furnish to such Third Party nonpublic information relating to the Company or any committee thereof determines in good faith, after consultation of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company Financial Advisor than those contained in the Confidentiality Agreement dated as of July 26, 2000 between the Company and outside legal counselParent (the "CONFIDENTIALITY AGREEMENT"), that (iii) take and disclose to its stockholders a position in compliance by Rule 14e-2(a) under the 1934 Act or otherwise make disclosure to them, (iv) following receipt of such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and fail to make, withdraw, or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Section 6.02 hereof or fail to call the Company Stockholder Meeting in accordance with Section 6.02 hereof and/or (v) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in each case referred to in the foregoing clauses (i) through (iv) only if the Board of Directors of the Company determines in good faith by a majority vote, after consultation with and based on the advice from King & Spalding, outside legal counsel to the Company, that the failure it must take such action to take the actions referred to in clause (A) or (B) below would constitute a breach of comply with its fiduciary duties to the shareholders of the Company under Applicable Law, then the Company may applicable law.
(Ac) 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 The Board of Directors of the Company or shall not take any committee thereof or consultation with of the actions referred to in clauses (i) through (iv) of the preceding subsection unless the Company Financial Advisor or outside legal counselshall have delivered to Parent a prior (and if not practicable, contemporaneously) (x) following the receipt of an Acquisition Proposal from a Third Party written notice advising Parent 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 it intends to take such action, and the Company who is not an officer or director of the Company), contact shall continue to advise Parent after taking 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 hereofaction. In addition, the Company shall as notify Parent promptly as practicable (and but in any no event within twenty-four (24) later than 24 hours) notify Parent after receipt by the Company (or any of its advisors) of any Acquisition Proposal, which notification shall include (i) any indication that a copy of the applicable written Third Party is considering making an 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 or 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 request for information relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and to the Company (or any of its Representatives) within twenty four (24) hours after receipt thereof (except Subsidiaries or for access to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof).
(d) The Company agrees not to release business, properties, assets, books 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 records of the Company or any of its Subsidiaries is a partyby any Third Party that may be considering making, or has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent informed, on as current basis as practicable, of the status and details of any such Acquisition Proposal, indication or request. The Company shall, and shall cause its Subsidiaries and the advisors, employees and other than to the extent the Board of Directors agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any committee thereof determines Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Party (or its agents or advisors) in good faith, after consultation with possession of confidential information about the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach was furnished by or on behalf of the directors’ fiduciary duties under Applicable LawCompany to return or destroy all such information.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by From the date of this Section 5.3, Agreement until the earlier to occur of the Acceptance Effective Time or the termination Termination Date, the Company shall not, and shall cause its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (collectively, the “Representatives”) of this Agreement pursuant to Section 8.1the Company and each of its Subsidiaries not to, directly or indirectly:
(i) the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate participate in, or knowingly encourage any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposal, (B) or engage in, continue or otherwise participate in any discussions or negotiations with any Third Party Person regarding an Acquisition Proposal, or furnish ;
(ii) disclose any non-public information relating to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreementbusinesses, ifassets, at any time prior to the 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 who is not an officer liabilities or director of the Company), (iii) the Board of Directors of the Company prospects or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 books 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 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 records of the Company or any of its Subsidiaries is a to, any Person regarding an Acquisition Proposal; or
(iii) waive or modify any confidentiality, standstill or similar agreement with any third party; provided that, other than prior to obtaining the Company Shareholders’ Approval, the Company may negotiate or otherwise engage in discussions with, and furnish non-public information relating to the extent Company or any of its Subsidiaries, or their businesses, assets, liabilities or prospects or afford access to the Board of Directors properties, books or records of the Company or any committee thereof determines of its Subsidiaries to, any Person (a “Third Party”) who delivers an unsolicited written bona fide proposal or offer regarding an Acquisition Proposal if the board of directors of the Company has (i) determined in good faithfaith (after consulting with a financial advisor of nationally recognized reputation) that such proposal or offer constitutes or reasonably could be expected to lead to a Superior Proposal; (ii) provided written notice to the Purchaser of its intent to furnish information or enter into discussions with such Third Party prior to taking any such action and (iii) obtained from such Third Party an executed confidentiality agreement and standstill agreement on terms no less restrictive with respect to such Third Party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and standstill agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such Third Party or otherwise having the effect of prohibiting the Company from satisfying its obligations under this Agreement in full or in part), after consultation except that such confidentiality agreement may permit such Third Party to share confidential information with its financing sources and Representatives, provided that the Company shall cause the Third Party to agree that such financing sources and Representatives shall also keep such information confidential in accordance with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach terms of the directors’ fiduciary duties under Applicable LawConfidentiality Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) Except as expressly provided by Section 5.2(b), at all times during the period commencing with the execution and (c) delivery of this Agreement and except as permitted by this Section 5.3, continuing until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant to Section 8.17.1 and receipt of the Company Shareholder Approval, the Company shall not (and shall cause the Company Subsidiaries not to), and shall direct the Company Representatives not to:
(i) the Company shall notinitiate, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, facilitate knowingly encourage or knowingly encourage facilitate any inquiries, proposals or offers that constituteinquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, ;
(Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to provide any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of data concerning the Company or any of its SubsidiariesCompany Subsidiary to any Person relating to, in each case for the purpose of encouraging any Acquisition Proposal; or
(iii) approve, endorse, recommend, execute or facilitating an Acquisition Proposal or (C) enter into any letter of intent, agreement in principle, merger agreement, contract, commitment acquisition agreement or other similar 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 to abandon, terminate or fail to consummate the transactions Agreement as contemplated by this Agreement; and
Section 5.2(b)) relating to an Acquisition Proposal. The Company shall (ii) the Company shall, and shall cause its the Company Subsidiaries to), and shall direct the Company’s and its Subsidiaries’ Company Representatives to, (A) immediately cease all discussions and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives Person that may be ongoing with respect to an any Acquisition Proposal, (B) to the extent permitted by applicable confidentiality agreements, shall request to be returned or destroyed all confidential information provided by or on behalf of the Company to such Person, to the extent provided in connection with a possible Acquisition Proposal, and (C) immediately upon execution of this Agreement, terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything to the contrary contained in Section 5.2(a) but subject to the last sentence of this Agreement, ifSection 5.2(b), at any time prior to receipt of the Acceptance TimeCompany Shareholder Approval, the Company and the Company Representatives may, subject to compliance with this Section 5.2(b):
(i) the Company receives provide information or data in response to a request therefor to a Person who has made a bona fide written Acquisition Proposal from a Third Party, after the date of this Agreement (ii) such which Acquisition Proposal did does not result from a arise out of any material breach of this Section 5.3 (except for any immaterial breach of this Section 5.3 by a Representative of 5.2) if and only if, prior to providing such information and data, the Company who is not has received from the Person so requesting such information an officer or director of executed Acceptable Confidentiality Agreement, provided that the Company), (iii) the Board of Directors of Company shall promptly make available to Parent any information and data concerning the Company or any committee thereof determines Company Subsidiary that is provided to any Person making such Acquisition Proposal that is given such access and that was not previously made available to Parent or its Representatives; and
(ii) engage or participate in discussions or negotiations with any Person who has made such a written Acquisition Proposal; provided that, prior to taking any action described in Section 5.2(b)(i) or Section 5.2(b)(ii) above, the Company Board shall have determined in good faith, based on the information then available and after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes, either constitutes a Superior Proposal or could reasonably be expected to lead to, to a Superior Proposal, and (iv) 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 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 Except as expressly provided by Section 5.2(d), at any time after the date hereof, and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof, the Company Board shall as promptly as practicable not:
(i) (A) withdraw, withhold, qualify or modify (or publicly propose to withdraw, withhold, qualify or modify) in any manner adverse to Parent or Merger Sub, the Company Board Recommendation with respect to the Merger, (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) fail to publicly recommend a rejection of any tender offer or exchange offer within ten (10) Business Days after the commencement of such offer, or (D) fail to recommend against any Acquisition Proposal within ten (10) Business Days of Parent’s request to do so (and in any event within twenty-four event, at least two (242) hours) notify Parent Business Days before the date of the Company Shareholders’ Meeting or as promptly as reasonably practicable in the case of any Acquisition Proposal, which notification shall include Proposal received within three (i3) a copy Business Days of the applicable written date of the Company Shareholders’ Meeting), or (E) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, an Acquisition Proposal (each of the actions described in this clause (i), a “Company Adverse Recommendation Change”), provided that for the avoidance of doubt, neither the approval or delivery of a Determination Notice or public disclosure thereof (to the extent required by Law or regulations applicable to the Company) shall be deemed a Company Adverse Recommendation Change; or, if oral, the material terms and conditions of such Acquisition Proposal) and
(ii) cause or permit 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 or any material developmentsCompany Subsidiary to enter into any acquisition agreement, discussions merger agreement 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 similar definitive Contract with respect to an Acquisition Proposal and the Company (or its Representativesother than any Acceptable Confidentiality Agreement entered into in accordance with Section 5.2(b)) within twenty four (24) hours after receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereofan “Alternative Acquisition Agreement”).
(d) The Company agrees not Notwithstanding anything to release or permit the release of contrary set forth in this Agreement, at any Person from, or time prior to waive or permit the waiver or termination of any provision of, any confidentiality, “standstill” or similar agreement to which any receipt of the Company Shareholder Approval:
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of any material breach of this Section 5.2) from any Person after the date of this Agreement (or any of its Subsidiaries is a party, other than that was made prior to the extent date of this Agreement and remade after the Board date of Directors of this Agreement) and that has not been withdrawn and that the Company or any committee thereof Board determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal, (x) the Company Financial Advisor Board may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, and (y) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(A) the Company shall have provided prior written notice (a “Determination Notice”) to Parent of at least four (4) Business Days with respect to such Superior Proposal (such period, the “Notice Period”), to the effect that the Company Board has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of any material breach of this Section 5.2) that the Company Board has determined in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board has determined to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to this Section 5.2(d), which Determination Notice shall specify the identity of the Person or group of Persons making the Superior Proposal and the material terms and conditions thereof, and shall have contemporaneously provided to Parent a copy of the proposed agreement governing such Superior Proposal (which shall be updated on a prompt basis);
(B) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall direct its financial and legal advisors to, during the Notice Period, negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal;
(C) at or following the end of the Notice Period, the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, and taking into account in good faith any revisions to this Agreement made or irrevocably committed to in writing by Parent, that such Acquisition Proposal continues to constitute a Superior Proposal if such revisions were to be given effect;
(D) in the event of any material revisions to an Acquisition Proposal that could have an impact, influence, or other effect on the Company Board’s decision or discussion with respect to whether such proposal is a Superior Proposal, the Company shall deliver a new written notice to Parent pursuant to the foregoing clause (A) and again comply with the requirements of this Section 5.2(d) with respect to such new written notice (but only on three (3) additional occasions); provided that the Notice Period shall be deemed to be a two (2) Business Day period; and
(E) in the case of any action contemplated by clause (y) of this Section 5.2(d), the Company shall have terminated this Agreement in accordance with Section 7.1(e)(ii), including the payment of the Company Termination Fee in accordance with Section 7.3(a)(i); or
(ii) other than in response to an Acquisition Proposal, the Company Board may effect a Company Adverse Recommendation Change in response to an Intervening Event if the Company Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would constitute a breach of be inconsistent with the directors’ fiduciary duties under Applicable applicable Laws, if and only if:
(A) the Company shall have provided a Determination Notice to Parent for at least the Notice Period to the effect that the Company Board has determined to effect a Company Adverse Recommendation Change, which notice shall specify the Intervening Event, that the Company Board has determined in good faith, after consultation with its outside legal counsel, that failure to effect a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Laws, and the basis for such determinations in reasonable detail;
(B) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall direct its financial and legal advisors 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 conditions of this Agreement in such a manner that obviates the need for the Company Board to effect such Company Adverse Recommendation Change; and
(C) at or following the end of such Notice Period, the Company Board determines in good faith, after consultation with its outside legal counsel, that failure to effect a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Laws (after taking into account any revisions to this Agreement made or irrevocably committed to in writing by Parent during such Notice Period if such revisions were to be given effect).
(e) Nothing contained in this Section 5.2 shall be deemed to prohibit the Company or the Company Board or any committee thereof from complying with its disclosure obligations under applicable U.S. federal or state Law, including making any disclosure to the Company Shareholders if the Company Board has determined in good faith after consultation with its outside legal counsel that the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that the taking of any action pursuant to this Section 5.2(e) shall in no way limit or modify the rights of Parent under Article VII.
(f) From the date of this Agreement until the earlier to occur of the receipt of the Company Shareholder Approval and the termination of this Agreement in accordance with Section 7.1, the Company agrees that it shall promptly (and, in any event, within two (2) Business Days of the Company’s Knowledge of any such event) notify Parent if (i) any proposals or offers with respect to an Acquisition Proposal are received by, (ii) in connection with any Acquisition Proposal, any non-public information is requested from or (iii) in connection with the submission of an Acquisition Proposal, any discussions or negotiations are sought to be initiated or continued with, the Company, any Company Subsidiary or any Company Representative indicating, in connection with such notice, the material terms and conditions of any proposals or offers and the nature of any non-public information so requested and thereafter shall keep Parent reasonably informed, on a prompt basis, of any material developments or modifications to the terms of any such proposals or offers and the status of any such material discussions or negotiations; provided that, subject to Section 5.2(d)(i)(A), the Company shall not be required to disclose the name or other identifying information of the Person or group of Persons making the Acquisition Proposal. Without limiting the generality of the foregoing, the Company shall provide to Parent, as soon as practicable and in any event within two (2) Business Days after receipt or delivery thereof, copies of all draft agreements (and any other written material relating to any Acquisition Proposal) sent by or provided to the Company, any Company Subsidiary or any Company Representative in connection with any Acquisition Proposal; provided that, subject to Section 5.2(d)(i)(A), the Company may redact the name and other identifying information of the Person or group of Persons making the Acquisition Proposal. The Company agrees that it and its Subsidiaries will not enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement which would prohibit the Company from providing any information to Parent in accordance with this Section 5.2.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until Until the earlier to occur of the Acceptance Time Closing or the termination of this Agreement pursuant to Section 8.1:
(i) 8.1 hereof, the Seller shall, and shall cause the Company Parties, and the directors, managers, officers, employees, independent contractors, agents, advisors and other representatives of the Seller, the Company Parties and their Affiliates (collectively, the “Company Representatives”) to, cease any existing discussion or negotiation with any Persons (other than the Purchaser and its Affiliates) conducted prior to the date hereof with respect to any proposed, potential or contemplated Competing Transaction, and the Seller shall not, nor and shall direct the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, Parties and the Company Representatives not to (and shall not publicly propose authorize or knowingly permit them to), directly or indirectly (indirectly, take any of the following actions with any party other than with respect to Parent the Purchaser and Purchaser), its designees: (Aa) solicit, initiate, facilitate participate or knowingly encourage any inquiries, proposals negotiations or offers that constitutediscussions with respect to any offer or proposal to acquire all or any portion of a Company Party’s business or assets, or that would reasonably be expected any equity interest in a Company Party or membership interests of a Company Party or any rights to lead toacquire, an Acquisition Proposaldirectly or indirectly, any membership interests of a Company Party or other equity interests in a Company Party, regardless of the form of transaction (a “Competing Transaction”), or effect any such Competing Transaction, (Bb) engage inexcept as required by Law, continue disclose any information to any Person concerning the business or otherwise participate assets of a Company Party, or afford to any Person access to a Company Party’s assets, books or records, other than in any discussions the ordinary course of business or negotiations in connection with the negotiation, execution and performance of this Agreement, (c) assist or cooperate with any Third Party Person to make any proposal regarding an Acquisition Proposala Competing Transaction, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (Cd) enter into any letter agreement with any Person providing for a Competing Transaction. In the event that the Seller, the Company Parties or any Company Representative shall receive, prior to the Closing or the termination of intentthis Agreement in accordance with Section 8.1 hereof, agreementany offer, contractproposal, commitment or agreement request, directly or indirectly, of the type referenced in principle with respect to an Acquisition Proposal clause (other than an Acceptable Confidentiality Agreementa), (c) or enter into (d) above, or any agreementrequest for disclosure or access as referenced in clause (b) above, contract the Seller, shall, or commitment requiring shall cause the Company to abandon, terminate Parties or fail to consummate the transactions contemplated by this Agreement; and
(ii) the such Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives Representative to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 terminate, suspend or otherwise discontinue any and all discussions or other negotiations with such Person with regard to such offers, proposals, or requests and (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)y) notify Purchaser thereof, contact such Third Party solely in order to clarify and understand including the terms and conditions of an Acquisition Proposal made by such Third Party so as to determine whether such Acquisition Proposal constitutesproposal or inquiry, or could reasonably be expected to lead toin reasonable detail. Without limiting the foregoing, a Superior Proposal and/or (y) direct it is understood that 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 violation of the date hereof, the Company shall as promptly as practicable (and restrictions set forth in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposal, which notification shall include Section 7.13 by (i) the Seller, a copy of the applicable written Acquisition Proposal (orCompany Party or any stockholder, if oralmember, the material terms and conditions of such Acquisition Proposal) and or any agent, representative or affiliate thereof or (ii) the identity any officer, manager, agent, representative or affiliate of the Third Party making such Acquisition Proposal. The a Seller or a Company Party, 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 be deemed 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 Financial Advisor and outside legal counsel, that failure to do so would constitute be a breach of this Agreement by the directors’ fiduciary duties under Applicable LawSeller.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Premier, Inc.)
No Solicitation. (a) Subject The Company shall, and shall cause each of the Acquired Companies and its Representatives to, immediately cease and cause to Sections 5.4(bbe terminated any activities, discussions or negotiations with any Persons (other than Parent, Acquisition Sub and their Affiliates and Representatives) and ongoing as of the date of this Agreement with respect to any Acquisition Proposal (cor that would reasonably be expected to result in an Acquisition Proposal). The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy all confidential information furnished to such Person prior to the date hereof by or on behalf of the Company or any of its Subsidiaries or Representatives.
(b) and except Except as expressly permitted by this Section 5.37.03, from the date of this Agreement until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to in accordance with Section 8.1:
(i) 10.01, the Company shall not, nor and shall the Company not authorize or permit any of its Subsidiaries to, nor shall the Acquired Company authorize or any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly indirectly: (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, facilitate initiate or knowingly encourage any inquiriesinquiry, proposals expression of interest or offers proposal by, or offer that constitute, constitutes an Acquisition Proposal (or that would reasonably be expected to lead to, result in an Acquisition Proposal) from any Person other than Parent, Acquisition Sub or their respective Affiliates or Representatives; (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party Person (other than Parent, Acquisition Sub or their respective Affiliates or Representatives) in furtherance of or for the purpose of obtaining any Acquisition Proposal; (iii) furnish any information relating to any Acquired Company to any Person (other than Parent, Acquisition Sub or their respective Affiliates or Representatives) in connection with or in response to an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding relating to any Acquisition Proposal with any Person other than Parent, Acquisition Sub or their respective Affiliates or Representatives (other than a confidentiality agreement pursuant to Section 7.03(d)); or (v) submit any Acquisition Proposal to the vote of the stockholders of the Company.
(c) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 10.01, the Company shall promptly (and in any event within two Business Days after the Company’s Knowledge of such event) notify Parent orally and in writing (which may be by email) of any expression of interest, proposal or offer with respect to an Acquisition Proposal or any request for discussions or negotiations regarding an Acquisition ProposalProposal that is received from any Person (other than Parent, Acquisition Sub or furnish to their respective Affiliates or Representatives) after the date hereof by any Third Party information Acquired Company or its Representatives and thereafter shall (x) keep Parent reasonably informed, on a prompt basis (and in any event within two Business Days), of any material development regarding the status or terms of any such expressions of interest, proposals or offers (including any amendments thereto) or requests and shall reasonably promptly (and in any event within two Business Days) apprise Parent of the status of any such discussions or negotiations and (y) provide to Parent as soon as reasonably practicable after receipt or delivery thereof (and in any Third Party access event within one Business Day) copies of all correspondence and other written material sent by or provided to the businesses, properties, assets or personnel of the Company or any of its SubsidiariesSubsidiaries from any Person that describes any of the terms or conditions of any Acquisition Proposal. In connection with such notice, the Company shall indicate the identity of such Person and shall provide a copy of any such expression of interest, proposal or offer that was received. Without limiting the foregoing, the Company shall notify Parent orally and in each case for writing (which may be by email) if the purpose of encouraging Company determines to begin providing information or facilitating to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 7.03(d), prior to providing any such information or (C) enter into engaging in 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing such discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposalnegotiations.
(bd) Notwithstanding anything to the contrary contained in this AgreementSection 7.03, if, if at any time prior to the Offer Acceptance Time, : (i) the Company receives a has received an unsolicited, bona fide and written Acquisition Proposal providing for the acquisition of more than fifty percent (50%) of the assets (on a consolidated basis) or more than fifty percent (50%) of the total voting power of the equity securities of the Company (by acquisition, merger or otherwise) from a Third Party, 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 who is not an officer or director of the Company), 7.03; (iii) the Company Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes, constitutes or could reasonably be expected to lead to, result in a Superior Proposal, ; and (iv) after consultation with its outside counsel, the Company Board of Directors of the Company or any duly authorized committee thereof determines in good faith after consultation with outside legal counsel that the failure to take such action would be inconsistent with the actions referred to in clause (A) or (B) below would constitute a breach of its directors’ fiduciary duties to the shareholders stockholders of the Company under Applicable Lawthe DGCL, then the Company may (A) furnish information and data with respect to the Company and its Subsidiaries Acquired Companies to the Third Party Person making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries Representatives and (B) enter into, maintain and participate in discussions or negotiations with the Third Party Person making such Acquisition Proposal and its Representatives regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiationsProposal; provided, however, provided that the Company (1x) will shall not, and will shall not authorize or permit any Acquired Company or any of its Subsidiaries or its or their Representatives to, furnish disclose any non-public information except pursuant to an Acceptable such Person without first entering into a confidentiality agreement containing limitations on the use and disclosure of all non-public information furnished to such Person by or on behalf of any of the Acquired Companies and “standstill” provisions, in each case no less favorable to the Company than those contained in the Confidentiality Agreement Agreement, and (2y) will shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries or access Acquired Companies provided to such Third Party other Person which was not previously provided to Parent. .
(e) Notwithstanding anything to the contrary contained in this Agreement, if (I) (1) the Company receives an unsolicited, bona fide and its Representatives may (without any determination by the Board 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 written 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 7.03 and that 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 outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement that may be offered by Parent pursuant to clause (ii) below, and (2) the Company Financial Advisor and Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to do take such action would be inconsistent with the fiduciary duties owed by the Company Board of Directors to the stockholders of the Company under the DGCL, or (II) the Company Board of Directors determines (other than with respect to an Acquisition Proposal) in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with the fiduciary duties owed by the Company Board of Directors to the stockholders of the Company under the DGCL, then the Company Board of Directors may at any time prior to the Offer Acceptance Time (y) effect a Change of Board Recommendation or (z) in the case of clause (I) above, terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (z), and any purported termination pursuant to the foregoing clause (z) shall be void and of no force or effect, unless the Company complies with the provisions of Section 10.01(e) and Section 10.03(b); and provided, further that the Company Board of Directors may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (y) or terminate this Agreement pursuant to the foregoing clause (z) unless (A) the Acquired Companies shall not have materially breached this Section 7.03 and (B):
(i) the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Notice Period”), of the Company’s intention to take any action permitted under clause (y) or (z) above, which notice shall, in the case of clause (I) above, specify the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal), and shall have contemporaneously provided to Parent a copy of the available relevant proposed transaction agreements with the party making such Superior Proposal (the “Alternative Acquisition Agreement”); 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, 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 conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal or, in the case of clause (II) above, the Company Board of Directors determines in good faith, after consultation with outside counsel, that the failure to make such a Change of Board Recommendation would constitute not be inconsistent with the fiduciary duties owed by the Company Board of Directors to the stockholders of the Company under the DGCL. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 7.03(e) with respect to such new written notice, except that references to the three Business Day period above shall be deemed to be references to a one Business Day period; and provided, further, that such new written notice shall in no event shorten the original Notice Period.
(f) Nothing in this Section 7.03 shall prohibit the Company, or the Company Board of Directors, directly or indirectly through any Representative, from disclosing in the Schedule 14D-9 or otherwise factual information regarding the business, financial condition or results of operations of the Acquired Companies or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal; provided, that the Company has in good faith, after consultation with outside counsel, determined that such information, facts, identity or terms is required to be disclosed under Applicable Law or that failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board of Directors under Applicable Law and, provided, further, that if such disclosure does not reaffirm the Company Board Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Board Recommendation, such disclosure shall be deemed to be a Change of Board Recommendation and Parent shall have the right to terminate this Agreement as set forth in Section 10.01(f). So long as the Company and its Representatives have otherwise complied with this Section 7.03, none of the foregoing shall prohibit the Company and its Representatives, at any time prior to the Offer Acceptance Time, from contacting any Persons or group of Persons that have made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Proposal, and any such actions shall not be a breach of the directors’ fiduciary duties under Applicable Lawthis Section 7.03.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(bSection 6.6(b) and (cSection 6.6(c) and except as permitted by this Section 5.36.5, until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of and its and their respective Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent Buyer and PurchaserMerger LLC), (A) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of providing information) any inquiries, proposals or offers that constitute, or that would could reasonably be expected to lead to, an Acquisition Proposal, (B) knowingly engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal or any inquires, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case in connection with or for the purpose of encouraging or facilitating an Acquisition Proposal or any inquires, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal, (C) approve, endorse or enter into any letter of intent, agreement, contract, commitment or agreement in principle (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5(b)) or other arrangement with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment or other arrangement requiring the Company to abandon, terminate terminate, breach or fail to consummate the transactions contemplated by this AgreementAgreement or (D) resolve or agree to do any of the foregoing; and
(ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ and their respective Representatives to, immediately cease and terminate any existing solicitations, encouragements, discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or its or their respective Representatives with respect to an Acquisition Proposal, and promptly (and, in any event, within 24 hours) following the date hereof, the Company shall request that all non-public information previously provided by or on behalf of the Company or any of its Subsidiaries to any such Third Party be returned or destroyed and shall use commercially reasonable efforts to cause the return or destruction thereof.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.5(a), if, at any time on or after the date hereof, but prior to obtaining the Acceptance TimeCompany Stockholder Approval, (i) the Company receives a an unsolicited written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not not, directly or indirectly, 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)6.5, (iii) the Company Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) the Company Board of Directors of the Company determines in good faith faith, after consultation with its financial advisor and outside legal counsel counsel, that the failure to take such action would reasonably be expected to be inconsistent with the actions referred to in clause (A) or (B) below would constitute a breach of its directors’ fiduciary duties to the shareholders of the Company under Applicable Lawapplicable 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 negotiationsnegotiations or take any of the actions otherwise prohibited by Section 6.5(a); provided, however, that the Company (1) will not, and will not permit cause its Subsidiaries or and its or their respective Representatives not to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will promptly (and in any event within 24 hours) provide to Parent Buyer any material non-public information or other data concerning the Company or its Subsidiaries or access provided to such Third Party Party, in each case 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 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 5.3Buyer.
(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 The Company shall as promptly as practicable (and in any event within twenty-four (24) 24 hours) notify Parent Buyer of the Company’s receipt of any Acquisition Proposal, or any inquires, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal, or of any requests for information or access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case in connection with an Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, which notification shall include (i) a copy of the applicable written Acquisition Proposal or other inquiry, proposal or offer (or, if oral, the material terms and conditions of such Acquisition ProposalProposal or other inquiry, proposal or offer) and (ii) the identity of the Third Party making such Acquisition Proposal, inquiry, proposal, offer or information or access request. The Company shall thereafter keep Parent Buyer reasonably informed on a reasonably current basis (and in any event within 24 hours) of the status of any material developments, discussions or negotiations regarding any such Acquisition ProposalProposal or other inquiry, proposal or offer, 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 setting forth or related to the material terms of such Acquisition Proposal or other inquiry, proposal or offer that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company or its Subsidiaries (or its or their respective Representatives) within twenty four (24) 24 hours after receipt thereof (except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereof)exchange thereof.
(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” standstill or similar agreement to which any of the Company or any Subsidiary of its Subsidiaries the Company is a party, other than to the extent the Company Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so provide such waiver, release or termination would reasonably be expected to be inconsistent with its fiduciary duties under applicable law.
(e) Notwithstanding anything to the contrary in this Section 6.5, the Company agrees that in the event any Subsidiary or Representative takes any action which, if taken by the Company, would constitute a breach by the Company of this Section 6.5, then the directors’ fiduciary duties under Applicable LawCompany shall be deemed to have so breached this Section 6.5.
Appears in 1 contract
No Solicitation. (a) Subject Prior to Sections 5.4(b) and (c) and except as permitted by this Section 5.3the Termination Date, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant subject to Section 8.1:
5, the Shareholder shall, and shall use commercially reasonable efforts to cause his employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (icollectively, the "Representatives") to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, other than the Company Merger. Prior to the Termination Date, subject to Section 5, the Shareholder shall not, nor and shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its use commercially reasonable efforts to cause his Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate or knowingly encourage (including by way of furnishing non-public information) the making of any inquiries, proposals proposal or offers that constitute, or that would reasonably be expected to lead to, an offer concerning any Acquisition Proposal, other than the Merger, (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an third party concerning any Acquisition Proposal, other than the Merger, (iii) approve, endorse or furnish to recommend any Third Party information or provide to any Third Party access to Acquisition Proposal, other than the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal Merger or (Civ) enter into any letter of intentintent or similar agreement or any Contract contemplated by or otherwise related to any Acquisition Proposal, agreementother than the Merger. If the Shareholder receives an unsolicited proposal or offer concerning an Acquisition Proposal, contracthe will notify the Company of such proposal or offer so that the Company may comply with its obligations under the Merger Agreement. Notwithstanding the foregoing, commitment or agreement in principle with respect the Shareholder is permitted to take any actions otherwise prohibited by this paragraph if such action is related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreementand if, contract or commitment requiring and only during such time as and to the extent that, the Company is then permitted under the Merger Agreement to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 engage in discussions or negotiations with such Person or group of related Persons that has made 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 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 provided 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 is in place as compliance with Section 5.07 of the date hereof)Merger Agreement.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Sources: Voting Agreement (Oakley Inc)
No Solicitation. (a) Subject The Company agrees that, prior to Sections 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Time Termination Date or the termination of this Agreement pursuant to Section 8.1:
(i) Effective Time, the Company shall will not, nor shall the Company permit directly or indirectly, (whether through any of its Subsidiaries todirectors, nor shall the Company authorize any of its Representatives officers, employees, agents or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly representatives or indirectly (other than with respect to Parent and Purchaser), (Aotherwise) solicit, initiate, facilitate facilitate, encourage (including by way of furnishing or knowingly encourage disclosing information), entertain or consider any inquiries, or proposals regarding:
(1) any merger, consolidation, stock exchange, tender offer or offers that constitute, or that would reasonably be expected to lead to, an Acquisition Proposalother business combination involving the Company, (B2) engage inany disposition, continue sale or otherwise participate in transfer of all or any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to substantial portion of the businesses, properties, assets or personnel of the Company or of the assets of any division of its Subsidiariesthe Company, in each case for or more than 25% of the purpose total voting power of encouraging or facilitating an Acquisition Proposal the capital stock of the Company or (C3) enter into any letter of intentequity or debt financing other than the Merger (collectively, agreement"Company Transactions"), contractor negotiate, commitment explore or agreement otherwise knowingly communicate in principle any way with any third party (other than HDG or its affiliates) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) any Company Transactions or enter into any agreement, contract arrangement or commitment understanding requiring the Company it to abandon, terminate or fail to consummate the Merger or any other transactions expressly contemplated by this Agreement; and
provided, however, that the Company shall have the right to conduct the Company Placement and initiate all actions necessary thereto; provided, however, that nothing contained in this Section 6.3(a) shall prevent the Company or its Board of Directors from, prior to obtaining the Company Stockholders' Approval, furnishing information to, or entering into discussions or negotiations with, any third party in connection with an unsolicited bona fide written proposal for a Company Transaction by such third party, if and to the extent that (i) such third party has made a written proposal to the Company Board of Directors which identifies a price or range of values to be paid, (ii) the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its financial advisors that the proposed Company Financial Advisor Transaction is reasonably capable of being consummated on substantially the terms proposed and outside legal counsel, would result in a transaction that such Acquisition Proposal constitutes, or could reasonably be expected would provide greater value to lead to, the Company's stockholders than the Merger (a "Company Superior Proposal"), and (iviii) the Company Board of Directors of the Company determines in good faith after consultation with outside legal is advised by independent 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 enter into negotiations with respect to such Company Superior Proposal would be reasonably likely to be inconsistent with the Company and its Subsidiaries to Board's fiduciary duties under applicable law. The Company shall promptly notify HDG after receipt by the Third Party making such Acquisition Proposal and afford such Third Party access to Company or the businesses, properties, assets and personnel Company's knowledge of the receipt by any of its advisors of a proposed Company and its Subsidiaries and (B) enter into, maintain and participate in discussions Transaction 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, request for information by a party 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 informs the Company or its Subsidiaries or access provided to such Third Party which was not previously provided to Parentadvisors that is considering proposing a Company Transaction. Notwithstanding anything to Such notice shall be made orally and in writing and shall indicate the contrary contained in this Agreement, the Company and its Representatives may (without any determination by the Board of Directors identity 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 offeror and understand the terms and conditions of an Acquisition Proposal made by its proposal. In the event that at any time prior to obtaining the Company Stockholders' Approval the Company shall have received a Company Superior Proposal, the Company Board may, upon written notice to HDG advising HDG that the Company Board is prepared to accept or recommend such Third Party so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Company Superior Proposal and/or (y) direct any Persons and subject to the other limitations set forth in this Agreementparagraph, including the specific provisions of terminate this Agreement pursuant to Section 5.310.1(e).
(b) HDG agrees that, prior to the earlier of the Termination Date or the Effective Time, HDG will not, directly or indirectly, (whether through HDG Sub or any of their directors, officers, employees, agents or representatives or otherwise) solicit, initiate, facilitate, encourage (including
(a) any merger, consolidation, share exchange, tender offer or other business combination involving HDG or HDG Sub, (b) any disposition, sale or transfer of all or any substantial portion of the assets of HDG or HDG Sub or of the assets of any division of HDG, or any of the total voting power of the capital stock of HDG or HDG Sub or (c) From any equity or debt financing other than the Merger (collectively, "HDG Transactions"), or negotiate, explore or otherwise knowingly communicate in any way with any third party (other than the Company or its affiliates) with respect to any HDG Transactions or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions expressly contemplated by this Agreement; provided, further, that nothing contained in this Section 6.3(b) shall prevent HDG or its Board of Directors from, prior to obtaining the HDG Stockholders' Approval, furnishing information to, or entering into discussions or negotiations with, any third party in connection with an unsolicited bona fide written proposal for an HDG Transaction by such third party, if 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 that (i) such third party has made a copy written proposal to the HDG Board of Directors which identifies a price or range of values to be paid in connection with the applicable written Acquisition Proposal (orproposed HDG Transaction, 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 HDG Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its financial advisors that the Company Financial Advisor proposed HDG Transaction is reasonably capable of being consummated on substantially the terms proposed and outside legal counselwould result in a transaction that would provide greater value to HDG's stockholders than the Merger (a "HDG Superior Proposal"), and (iii) the HDG Board of Directors is advised by independent counsel that failure to do so enter into negotiations with respect to such HDG Superior Proposal would constitute a breach of be reasonably likely to be inconsistent with the directors’ HDG Board's fiduciary duties under Applicable Law.applicable law. HDG shall promptly notify the Company after receipt by HDG or HDG Sub or HDG's knowledge of the receipt by any of its advisors of a proposed HDG Transaction or any request for information by a party that informs HDG, HDG Sub or their advisors that is considering proposing an HDG Transaction. Such notice shall be made orally and in writing and shall indicate the identity of the offeror and the terms and conditions of its proposal. In the event that at any time prior to obtaining the HDG Stockholders' Approval HDG or HDG Sub shall have received a HDG Superior Proposal, the HDG Board may, upon written notice to the Company advising the Company that the HDG Board is prepared to accept or recommend such HDG Superior Proposal and subject to the other limitations set forth in this paragraph, terminate this Agreement pursuant to Section 10.1(c). AI
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as permitted by set forth in this Section 5.36.1, until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant in accordance with the terms hereof (the “Specified Time”), the Company and its Subsidiaries shall not, the Company and its Subsidiaries shall cause their respective directors, officers and employees not to, and the Company and its Subsidiaries shall use reasonable best efforts to Section 8.1cause their respective investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) the Company shall notsolicit, nor shall the Company permit any of its Subsidiaries initiate or knowingly encourage or cooperate with respect to, nor shall the Company authorize preparation or submission of any inquiries or the making of its Representatives any proposal or offer from any Person (other than the Buyer) that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; or
(ii) enter into, continue or otherwise participate in any discussions, communications or negotiations with any Person regarding an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal any non-public information with respect to it or any of its Subsidiary’s Subsidiaries’ business, properties or assets. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with this Section 6.1, prior to the time the Required Company Shareholder Vote is obtained, the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries to any Person (and the Representatives toof such Person) in response to a request therefor making a bona fide written Acquisition Proposal that did not result from a material breach of this Section 6.1, pursuant to a confidentiality agreement not less restrictive with respect to the confidentiality obligations of the other party than the confidentiality obligations of the Buyer under the Confidentiality Agreement, and to the extent non-public information that has not been made available to the Buyer is made available to such Person, furnish such non-public information to the Buyer prior to or substantially concurrently with the time it is provided to such Person and (B) engage in discussions or negotiations (including solicitation of a revised Acquisition Proposal) with such Person and its Representatives regarding any such Acquisition Proposal; provided that the Company Board shall be permitted to take any action described in the foregoing clauses (A) and (B) if and only if prior to take such particular action the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that (i) the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the shareholders of the Company under - 42 - applicable law and (ii) such Acquisition Proposal is or would reasonably be expected to lead to a Superior Proposal.
(b) Prior to the Specified Time, the Company Board shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to the Buyer, the approval or recommendation by the Company Board with respect to the Company Voting Proposal (the “Company Board Recommendation”);
(ii) approve, recommend or otherwise declare advisable, or publicly propose to approve, recommend or otherwise declare advisable, an Acquisition Proposal;
(iii) fail to include the Company Board Recommendation in the Proxy Statement;
(iv) fail to publicly recommend against any Acquisition Proposal that is a tender offer or exchange offer within ten Business Days after commencement of such offer (or such fewer number of days as remain prior to the Company Meeting, as it may be adjourned or postponed in accordance with this Agreement) (any of the actions described in the foregoing clauses (i), (ii), (iii) and (iv), a “Company Board Recommendation Change”); or
(v) approve, and the Company shall not publicly propose toenter into, directly any letter of intent, term sheet, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, joint venture agreement, or indirectly similar agreement (such agreement, an “Alternative Acquisition Agreement”) providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the time the Required Company Shareholder Vote is obtained, the Company Board may (x) effect a Company Board Recommendation Change (A) in response to a Company Intervening Event or (B) following receipt of a bona fide written Acquisition Proposal after the date of this Agreement that did not result from a material breach of this Section 6.1 that the Company Board has determined in good faith, after consultation with outside legal counsel and its financial advisors, is a Superior Proposal, in each case of clauses (A) and (B) if, and only if, prior to effecting such Company Board Recommendation Change, (xx) the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s shareholders under applicable Law and (yy) the Company complies with Section 6.1(c), or (y) following receipt of a bona fide written Acquisition Proposal after the date of this Agreement that did not result from a material breach of this Section 6.1 that the Company Board has determined in good faith, after consultation with outside legal counsel and its financial advisors, is a Superior Proposal, cause or permit the Company to terminate this Agreement pursuant to Section 8.1(f) for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (an “Alternative Definitive Acquisition Agreement”) with respect to Parent such Superior Proposal, if, and Purchaseronly if, (xx) prior to such termination, the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s shareholders under applicable Law, (yy) prior to such termination, the Company complies with Section 6.1(c), and (zz) concurrently with such termination, (1) the Company enters into such Alternative Definitive Acquisition Agreement with respect to such Superior Proposal and (2) the Company pays a cash termination fee of $11.0 million (the “Company Termination Fee”).
(c) Prior to the Company taking any of the actions (i) under clause (x)(A) in the second sentence of Section 6.1(b), (A) solicitthe Company shall provide the Buyer with four (4) Business Days’ prior written notice advising the Buyer that it intends to effect a Company Board Recommendation Change in response to a Company Intervening Event, initiatedescribing in reasonable detail the reasons for such Company Board Recommendation Change, facilitate (B) during such four (4) Business Day period, if requested by the Buyer, the Company shall make its representatives available for negotiations with the Buyer to amend the terms and conditions of this Agreement and (C) following the end of such four (4) Business Day period, the Company Board, after taking into account any modifications to the terms and conditions of this Agreement and the Merger set forth in a written and binding offer of the Buyer, shall re-determine in good faith after consultation with its financial advisors and outside counsel that (x) such Company Intervening Event continues to necessitate a Company Board Recommendation Change, even if the modifications offered by the Buyer were to be given effect and (y) failure to effect such Company Board Recommendation Change would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s shareholders under applicable Law, or knowingly encourage (ii) under clause (x)(B) or clause (y) in the second sentence of Section 6.1(b), (A) the Company shall provide the Buyer with four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal, or any material amendment to the financial terms or any other material terms of the applicable Acquisition Proposal, shall require a new notice and an additional three (3) Business Day period) advising the Buyer that it intends to take such action, and attaching a complete copy of the Acquisition Proposal (any such notice described in either of clauses (i)(A) or (ii)(A) of this Section 6.1(c), a “Recommendation Change Notice”) (it being understood that a Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement), (B) the Company shall, during such four (4) Business Day period (or subsequent three (3) Business Day period), make its Representatives available for negotiations with the Buyer to make such adjustments to the terms and conditions of this Agreement and (C) following the end of such four (4) Business Day period (or subsequent three (3) Business Day period), the Company Board, after taking into account any modifications to the terms and conditions of this Agreement and the Merger set forth in a written and binding offer of the Buyer, shall re-determine in good faith after consultation with its financial advisors and outside counsel that (x) such Acquisition Proposal continues to constitute a Superior Proposal and (y) failure to effect such Company Board Recommendation Change would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s shareholders under applicable Law.
(d) The Company shall promptly (and in any event within one Business Day) after the Company’s receipt or the occurrence of any Acquisition Proposal or the determination of the existence of a Company Intervening Event, as applicable, (i) notify the Buyer of such Acquisition Proposal or Company Intervening Event, as applicable, (ii) communicate the material terms and conditions of any such Acquisition Proposal (including, if applicable, providing copies of any written inquiries, requests, proposals or offers that constituteand any proposed agreements relating thereto, which may be redacted to the extent necessary to protect confidential information of the Person making such Acquisition Proposal) and the identity of the Person making any such Acquisition Proposal or the material events, facts, circumstances, developments or occurrences of such Company Intervening Event, as applicable, and (iii) notify the Buyer of any request for non-public information for the purpose of making, or to engage in negotiations or discussions that would contemplate, an Acquisition Proposal.
(e) Notwithstanding the foregoing, the Company and the Company Board may (i) take and disclose to its shareholders a position with respect to a tender offer contemplated by Rule 14e-2 promulgated under the Exchange Act with regard to any Acquisition Proposal (provided that any such action or disclosure shall be deemed to constitute a Company Board Recommendation Change, unless the Company Board reaffirms the Company Board Recommendation in connection with such action or disclosure) and (ii) make any disclosure contemplated by Rule 14d-9(f) promulgated under the Exchange Act.
(f) From and after the date of this Agreement, the Company and its Subsidiaries shall, and shall cause their respective directors, officers and employees to, and shall use reasonable best efforts to cause its investment bankers, attorneys, accountants and other advisors or representatives to, (i) cease and terminate immediately all activities, discussions, communications and negotiations that commenced prior to the date of this Agreement regarding any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate take such action as is necessary to enforce any existing discussions confidentiality provisions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 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 effect to which any of the Company or any of its Subsidiaries is a party, other than to the extent the Board party or of Directors of which the Company or any committee thereof determines of its Subsidiaries is a beneficiary and (iii) not terminate, waive, amend, release or modify any provision of any standstill agreement (including any standstill provision contained in any confidentiality or other agreement) to which it or any of its Affiliates or Representatives is a party, unless, solely, with respect to this clause (iii), the Company Board has determined in good faith, after consultation with the Company Financial Advisor its financial advisors and outside legal counsel, that failure to do so take such action would constitute a breach reasonably be expected to be inconsistent with the fiduciary duties of the directors’ fiduciary duties Company Board to the Company’s shareholders under Applicable applicable Law. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to an Acquisition Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representatives.
(g) For purposes of this Agreement: - 45 -
Appears in 1 contract
Sources: Merger Agreement (American Science & Engineering, Inc.)
No Solicitation. (a) Subject Prior to Sections 5.4(b) and (c) and except as permitted by this Section 5.3the Termination Date, until the earlier to occur of the Acceptance Time or the termination of this Agreement pursuant subject to Section 8.1:
5, the Shareholder shall, and shall use commercially reasonable efforts to cause his employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (icollectively, the “Representatives”) to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, other than the Company Merger. Prior to the Termination Date, subject to Section 5, the Shareholder shall not, nor and shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its use commercially reasonable efforts to cause his Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (Ai) solicit, initiate, facilitate or knowingly encourage (including by way of furnishing non-public information) the making of any inquiries, proposals proposal or offers that constitute, or that would reasonably be expected to lead to, an offer concerning any Acquisition Proposal, other than the Merger, (Bii) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an third party concerning any Acquisition Proposal, other than the Merger, (iii) approve, endorse or furnish to recommend any Third Party information or provide to any Third Party access to Acquisition Proposal, other than the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal Merger or (Civ) enter into any letter of intentintent or similar agreement or any Contract contemplated by or otherwise related to any Acquisition Proposal, agreementother than the Merger. If the Shareholder receives an unsolicited proposal or offer concerning an Acquisition Proposal, contracthe will notify the Company of such proposal or offer so that the Company may comply with its obligations under the Merger Agreement. Notwithstanding the foregoing, commitment or agreement in principle with respect the Shareholder is permitted to take any actions otherwise prohibited by this paragraph if such action is related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreementand if, contract or commitment requiring and only during such time as and to the extent that, the Company is then permitted under the Merger Agreement to abandon, 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 and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 engage in discussions or negotiations with such Person or group of related Persons that has made 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 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 provided 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 is in place as compliance with Section 5.07 of the date hereof)Merger Agreement.
(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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) The Company shall, and (c) shall cause its Subsidiaries and except as permitted its and its Subsidiaries’ respective directors, officers and employees and each investment banker, financial advisor, attorney, accountant and each other advisor, agent or representative retained by this Section 5.3, until or acting at the earlier to occur direction of the Acceptance Time Company or any of its Subsidiaries in connection with the termination of this Agreement pursuant to Section 8.1:
Transactions (collectively, “Representatives”) to, (i) cease any discussions or negotiations with any Person with respect to an Alternative Proposal or that would reasonably be expected to lead to an Alternative Proposal, (ii) request the prompt return or destruction of any confidential information or evaluation material previously provided or furnished to any such Person and (iii) not terminate, waive, amend, modify or fail to enforce any provision of any standstill or confidentiality agreement to which it or any of its Subsidiaries is a party. The Company shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of and its and their Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (Ai) solicit, initiate, knowingly facilitate or otherwise knowingly encourage any inquiriesAlternative Proposal or any inquiry that constitutes or would reasonably be likely to lead to an Alternative Proposal or (ii) other than to inform such third party of the provisions of this Section 6.3, proposals participate in any discussions or offers negotiations regarding any Alternative Proposal or any inquiry that constituteconstitutes or would reasonably be likely to lead to an Alternative Proposal, furnish to any Person any information or data with respect to, or otherwise cooperate with or take any action to knowingly facilitate any proposal that constitutes or would reasonably be expected to lead to any Alternative Proposal, or requires the Company to abandon, terminate or fail to consummate the Transactions or (iii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement or understanding relating to, or that would reasonably be expected to lead to, an Acquisition any Alternative Proposal. Notwithstanding the foregoing, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access prior to the businessesacceptance for payment of shares of Company Common Stock in the Offer, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating an Acquisition Proposal 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 to abandon, 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 if the Company’s and its Subsidiaries’ Representatives toBoard of Directors determines, immediately cease and terminate any existing discussions or negotiations after consultation with any Third Party theretofore conducted outside counsel, in good faith by resolution duly adopted that an unsolicited written Alternative Proposal received after the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained date hereof other than in this Agreement, if, at any time prior to the 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 who 6.3 constitutes or is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected likely to lead to, constitute a Superior Proposal, Proposal and (iv) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that the failure it is reasonably necessary to take the actions referred such action to in clause (A) or (B) below would constitute a breach of comply with its fiduciary duties to the shareholders of the Company under Applicable applicable Law, then the Company Company, after giving Parent prompt written notice of such determination (and in any event no later than 24 hours after such determination), may (A) furnish any 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 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 Person (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 Alternative Proposal pursuant to a confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement, provided, that all such information provided or furnished to such Person has been provided or furnished previously to Parent or is provided or furnished to Parent concurrently with it being provided or furnished to such Person and the Company (or B) participate in discussions and negotiations with such Person (and 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) regarding an Alternative Proposal. The Company agrees not to release or permit the release that any violation of this Section 6.3(a) by 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 Representative of the Company or any of its Subsidiaries is shall be deemed a partybreach of this Section 6.3(a) by the Company.
(b) In the event the Company receives an Alternative Proposal or request for information or inquiry that relates to or would be reasonably likely to lead to an Alternative Proposal, the Company shall promptly (within 24 hours) provide Parent with a copy (if in writing) and summary of the material terms and conditions of such Alternative Proposal, request or inquiry and the identity of the Person (and its equity investors, if known by the Company) making such Alternative Proposal, request or inquiry, and shall keep Parent reasonably informed of the status of any financial or other than material modifications to such Alternative Proposal, request or inquiry, including by conveying a copy of all such modifications that are in writing, promptly (within 24 hours) of any of the extent Company’s officers’, directors’ or financial advisors’ receipt thereof.
(c) Except as expressly permitted by this Section 6.3(c), the Company’s Board of Directors or any committee thereof shall not and shall not publicly propose to (i)(A) withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) recommend to the shareholders of the Company, or approve or adopt, an Alternative Proposal or (C) in the event that any Alternative Proposal is publicly announced or any Person commences a tender offer or exchange offer for any outstanding shares of Company Common Stock, fail to issue a press release that reaffirms the Company Board Recommendation and, in the case of a tender offer or exchange offer, recommend against acceptance of such tender offer or exchange offer by the Company shareholders, in each case within 10 business days of such announcement or commencement (for the avoidance of doubt, the taking of no position by the Company’s Board of Directors in respect of the acceptance of any tender offer or exchange offer by its shareholders shall constitute a failure to recommend against any such offer) (any action, publicly proposed action or inaction described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) enter into, approve or authorize the Company or any committee thereof of its Subsidiaries to enter into any letter of intent, memorandum of understanding, or any merger, acquisition, option, joint venture, partnership or similar agreement with respect to any Alternative Proposal (other than a confidentiality agreement, subject to the requirements set forth in Section 6.3(a)) (each, a “Company Acquisition Agreement”). Notwithstanding the foregoing, prior to the acceptance for payment of shares of Company Common Stock in the Offer (x) the Company’s Board of Directors may, subject to compliance with this Section 6.3, withdraw or modify the Company Board Recommendation if the Company’s Board of Directors determines (after receiving the advice of its outside counsel) in good faith, after consultation with the Company Financial Advisor and outside legal counsel, faith by resolution duly adopted that failure it is reasonably necessary to do so would constitute a breach to comply with its fiduciary duties to the shareholders of the directors’ fiduciary duties Company under Applicable Law.applicable Law and (y) if the Company’s Board of Directors receives an Alternative Proposal that the Company’s Board of Directors determines, in good faith by resolution duly adopted, constitutes a Superior Proposal, the Company or its Subsidiaries may, subject to compliance with this Section 6.3, enter into a definitive Company Acquisition Agreement with respect to such Superior Proposal and concurrently with entering into such Company Acquisition Agreement terminates this Agreement pursuant to Section 8.1(d). If the Company desires to enter into such a Company Acquisition Agreement with respect to an Alternative Proposal or to make a Company Adverse Recommendation Change, it shall give Parent written notice (a “Company Adverse Recommendation Notice”) containing a description of the material terms of such Alternative Proposal or any other basis for a Company Adverse Recommendation Change, the most current version of any Company Acquisition Agreement relating to the Superior Proposal, if any, any other information required by Section 6.3(b) and, if applicable, advising Parent that the Company’s Board of Directors has determined that such Alternative Proposal is a Superior Proposal and that the Company’s Board of Directors intends to enter into a Company Acquisition Agreement with respect to such Superior Proposal. The Company may make a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(d) only (i) if at least five business days have passed since the date of the Company Adverse Recommendation Notice and
Appears in 1 contract
Sources: Merger Agreement (Watsco Inc)
No Solicitation. (a) Subject to Sections Section 5.4(b) and (c) and except as permitted by this Section 5.3, until the earlier to occur of the Acceptance Effective Time or the termination of this Agreement pursuant to Section 8.1:
(i) the Company shall not, nor and shall the Company permit any of cause its Subsidiaries to, nor shall the Company authorize any of controlled Affiliates and its and their respective Representatives or any of its Subsidiary’s Representatives not to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser), (A) solicit, initiate, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that would could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalregarding, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, Subsidiaries with respect to or in each case for connection with or with the purpose of encouraging or facilitating facilitating, an Acquisition Proposal Proposal, or (C) enter into any letter of intent, agreement, contract, commitment or commitment, agreement in principle or any other arrangement or understanding with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (any of the foregoing, a “Company Acquisition Agreement”) or enter into any agreement, contract contract, commitment, arrangement or commitment understanding requiring the Company to to, or contemplating that the Company will, abandon, 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 controlled Affiliates and its Subsidiaries’ and their respective Representatives to, immediately cease and terminate any existing discussions solicitation, encouragement, discussion or negotiations negotiation with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal; and
(iii) the Company shall request the prompt return or destruction of all confidential information previously furnished to any Person within the last 12 months for the purposes of evaluating a possible Acquisition Proposal and terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal. Any violation of the restrictions in this Section 5.3 by any of the Company’s controlled Affiliates or any of its or their respective Representatives shall be a breach of this Section 5.3 by the Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the Offer Acceptance Time, (i) the Company receives a bona fide 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 who is not an officer or director of the Company)5.3, and (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor Company’s financial advisor and outside legal counsel, that (x) such Acquisition Proposal constitutes, or could would reasonably be expected to lead to, a Superior Proposal, Proposal and (ivy) the failure to do so would be inconsistent with the fiduciary duties of 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 applicable Law, then the Company may (A) furnish information and data with respect to the Company and its the Company 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 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 negotiationsProposal; provided, however, that the Company (1) will not, and will not permit its the Company Subsidiaries or its or their Representatives to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement Agreement, and (2) will promptly provide the Company also provides Parent, prior to Parent the time any material such information or data is provided or made available to such Third Party, any non-public information concerning the Company or its Subsidiaries or access provided furnished or afforded to such Third Party which that was not previously provided furnished or afforded to Parent. The Company shall notify Parent prior to furnishing any non-public information, providing access to its businesses, properties, assets and personnel and/or entering into any discussions or negotiations as provided in this Section 5.3(b). Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (without any determination by may, prior to the Board of Directors of the Company or any committee thereof or consultation with the Company Financial Advisor or outside legal counsel) (x) Offer Acceptance Time, 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)5.3, contact such Third Party solely in order to clarify and understand refer them to 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. For the avoidance of doubt, a Person who has previously entered into a confidentiality agreement with the Company relating to an Acquisition Proposal shall not be required to enter into a new or revised confidentiality agreement if such existing confidentiality agreement constitutes an Acceptable Confidentiality Agreement.
(c) From and after the date hereof, and except to the extent expressly prohibited by a confidentiality agreement in place as of the date hereofthis Agreement, the Company shall as promptly as practicable (and in any event within twenty-four (24) hours) notify Parent of any Acquisition Proposal, or any request for information or inquiry that could reasonably be expected to lead to or contemplates an Acquisition Proposal, which notification shall include (i) a copy of the applicable written Acquisition Proposal Proposal, request or inquiry (or, if oral, the material terms and conditions of such Acquisition Proposal, request or inquiry) (including in each case any subsequent material amendments or other material modifications thereto) and (ii) the identity of the Third Party making such Acquisition Proposal, request or inquiry. The Commencing upon the provision of any notice referred to above, the Company (or its outside counsel) shall thereafter keep Parent reasonably informed (A) on a reasonably current daily basis at mutually agreeable times, advise and confer with Parent (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the status material resolved and unresolved issues related thereto and any other matters identified with reasonable specificity by Parent (or its outside counsel) and the material details (including amendments or proposed amendments as to price and other material terms) of any material developments, discussions or negotiations regarding any such Acquisition Proposal, request or inquiry and the material terms (B) promptly upon receipt or delivery thereof, provide Parent (or its outside counsel) with copies of all documents and conditions thereof written and electronic communications (other than any immaterial documents or communications) relating to any such Acquisition Proposal (including any change in price or form of consideration or other material amendment theretothe financing thereof), including by providing a copy of material documentation relating thereto that is request or inquiry exchanged between the Company, any of its controlled Affiliates or any of its or their respective Representatives, on the one hand, and the Third Party (or its Representatives) making such Acquisition Proposal Proposal, any of its Affiliates or any of its or their respective Representatives, on the other hand. The Company agrees that it and its controlled Affiliates will not enter into any agreement with any Person which prohibits the Company (from providing any information to Parent in accordance with, 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)otherwise complying with, this Section 5.3.
(d) The Company agrees shall not, and shall cause its controlled Affiliates not to to, release or permit the release of any Person from, or to waive waive, amend or permit the waiver or termination of modify any provision of, or grant any confidentialitypermission under, “standstill” (A) any standstill provision or similar agreement provision with respect to which any capital stock of the Company or any of its Subsidiaries in any agreement to which the Company or any of its controlled Affiliates is a party or (B) any confidentiality provision in any agreement to which the Company or any of its controlled Affiliates is a party, other than provided that this clause (B) shall not prohibit any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to a possible Acquisition Proposal; provided, further, that the Board of Directors of the Company shall be permitted to grant waivers of, and not enforce, any standstill provision to the extent that (x) such provision would otherwise prohibit the counterparty thereto from making a confidential Acquisition Proposal directly to the Board of Directors of the Company in accordance with this Section 5.3 and (y) the Board of Directors of the Company determines, in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Except to the extent otherwise permitted by the proviso in the foregoing sentence, the Company shall, and shall cause its controlled Affiliates to, enforce the confidentiality and standstill provisions of any such agreement, and the Company shall, and shall cause its controlled Affiliates to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such provisions.
(e) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company or any committee thereof determines in good faiththereof, after consultation with the Company Financial Advisor and outside legal counsel, that the failure to do so would constitute a breach be inconsistent with the fiduciary duties of the directors’ fiduciary duties Board of Directors of the Company under Applicable applicable Law or any disclosure requirements under applicable Law, or (iii) making any disclosure that constitutes a stop, look and listen communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act that includes an express reaffirmation of the Company Board Recommendation; provided that this Section 5.3(e) shall not permit the Board of Directors of the Company to make an Adverse Change Recommendation except to the extent permitted by Section 5.4(b) or Section 5.4(c) and any Adverse Recommendation Change will be subject to the terms and conditions of this Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) The Company represents and (c) warrants to, and except as permitted by this Section 5.3covenants and agrees with, until Parent and the earlier to occur Purchaser that neither the Company nor any of the Acceptance Time Subsidiaries has any agreement, arrangement or understanding with any potential acquiror that, directly or indirectly, would be violated, or require any payments, by reason of the execution, delivery and/or consummation of this Agreement. The Company shall, and shall cause the Subsidiaries and its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person other than Parent or the termination Purchaser (a "Third Party") heretofore conducted with respect to any Acquisition Transaction (as hereinafter defined). The Company and the Board of this Agreement pursuant to Section 8.1:
(i) Directors of the Company shall not, nor shall the Company permit any of its Subsidiaries to, nor shall the Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall cause the Subsidiaries and its and their respective officers, directors, employees, investment bankers, attorneys and other agents and representatives not publicly propose to, directly or indirectly indirectly, (other than with respect w) withdraw or modify (or resolve to withdraw or modify) in a manner adverse to Parent and Purchaser)the approval or recommendation of the Board of Directors of the Company of this Agreement or any of the transactions contemplated hereby or recommend (or resolve to recommend) an Acquisition Transaction with a Third Party to the Shareholders, (Ax) solicit, initiate, continue, facilitate or knowingly encourage (including by way of furnishing or disclosing non-public information) any inquiries, proposals or offers that constitutefrom any Third Party with respect to, or that would could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue any acquisition or otherwise participate in any discussions purchase of a material portion of the assets or negotiations with any Third Party regarding an Acquisition Proposalbusiness of, or furnish to a 15% or more voting equity interest in (including by way of a tender offer), or any Third Party information amalgamation, merger, consolidation or provide to business combination with, or any Third Party access to the businessesrecapitalization or restructuring, propertiesor any similar transaction involving, assets or personnel of the Company or any of its Subsidiariesthe Subsidiaries (the foregoing being referred to collectively as an "Acquisition Transaction"), in each case for the purpose of encouraging or facilitating an Acquisition Proposal or (Cy) enter into negotiate, explore or otherwise communicate in any letter of intent, agreement, contract, commitment or agreement in principle way with any Third Party with respect to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) Transaction or enter into into, approve or recommend any agreement, contract arrangement or commitment understanding requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) Offer and/or the Company shall, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time prior to the 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company Merger or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 Parentother transaction contemplated hereby. Notwithstanding anything to the contrary contained in this Agreementthe foregoing, the Company and its Representatives may may, prior to the purchase of Shares pursuant to the Offer, in response to an unsolicited written proposal with respect to an Acquisition Transaction involving the acquisition of all of the Shares (without any determination by or all or substantially all of the Board of Directors assets of the Company or any committee thereof or consultation with and the Company Financial Advisor or outside legal counselSubsidiaries) (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 or in response to an unsolicited all cash tender offer 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 all Shares (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 furnish 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 Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Law.disclose non-public
Appears in 1 contract
No Solicitation. (a) Subject to Sections 5.4(b) and (c) and except Except as expressly permitted by this Section 5.35.03, (i) from and after the date hereof (immediately following the execution of this Agreement), the Company shall, and shall cause the Company Subsidiaries and Company Representatives to, cease any solicitations, discussions, requests or negotiations with any persons that may be ongoing with respect to any inquiry, proposal, or offer that constitutes or could reasonably be expected to lead to a Competing Proposal (an “Inquiry”) and to promptly request the prompt return or destruction of all confidential information previously furnished to any such person or its Representatives (other than Parent and its Representatives acting in such capacity) in connection with a Competing Proposal made by such person and (ii) from and after the date hereof (immediately following the execution of this Agreement) until the earlier to occur of the Acceptance Effective Time or and the termination of this Agreement pursuant to Section 8.1:
7.01 (i) in accordance with the terms thereof), the Company shall not, nor and shall cause the Company permit any of its Subsidiaries to, nor shall the and Company authorize any of its Representatives or any of its Subsidiary’s Representatives to, and the Company shall not publicly propose to, directly or indirectly (other than with respect to Parent and Purchaser)indirectly, (A) solicit, initiate, facilitate solicit or knowingly encourage or knowingly facilitate any inquiries, proposals Inquiry or offers that constitute, otherwise knowingly encourage or that would reasonably be expected knowingly facilitate any effort or attempt to lead to, an Acquisition make a Competing Proposal, (B) furnish or provide any non-public information or data regarding the Company or any Company Subsidiary to any third person in connection with or in response to an Inquiry or a Competing Proposal made by such person or any Representatives of such third person, (C) enter into, engage in, knowingly encourage, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposalperson or its Representatives with respect to any Inquiry or Competing Proposal made by such person, (D) grant any waiver, amendment, permission or release under, or furnish modify any provision of, any standstill provision of any confidentiality or similar agreement to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of which the Company or any Company Subsidiary is a party (other than a limited waiver under any pre-existing confidentiality or similar agreement to the extent necessary to allow for a confidential Competing Proposal to be made to the Company so long as the Company promptly (and in any event with in twenty-four (24) hours thereafter) notifies Parent thereof (including the identity of its Subsidiariesany such counterparty) after granting any such limited waiver), in each case for the purpose of encouraging (E) approve, endorse, recommend, or facilitating an Acquisition Proposal execute or (C) enter into into, any letter of intent, agreement in principle, term sheet, memorandum of understanding, merger agreement, contractacquisition agreement, commitment share purchase agreement or agreement in principle other Contract relating to a Competing Proposal with respect to an Acquisition Proposal such person or any of its representative (other than an Acceptable Confidentiality AgreementAgreement in accordance with Section 5.03(b) or enter into any agreement“clean team” or similar agreements) (an “Alternative Acquisition Agreement”) or (F) authorize any of, contract or commitment requiring commit to or agree to do any of the Company to abandonforegoing; provided, terminate or fail to consummate the transactions contemplated by this Agreement; and
(ii) the Company shallthat, and shall cause its Subsidiaries to, and shall direct the Company’s and its Subsidiaries’ Representatives to, immediately cease and terminate any existing discussions or negotiations with any Third Party theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to an Acquisition Proposal.
(b) Notwithstanding notwithstanding anything to the contrary contained in this AgreementSection 5.03(a), if, at any time prior to the Acceptance Time, (i) if the Company receives a written Acquisition any Inquiry or Competing Proposal from a Third Partyany 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 who is not an officer or director of the Company), (iii) the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (iv) 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 contact any person or its group of persons that has made an Inquiry or their Representatives to, furnish any non-public information except pursuant to an Acceptable Confidentiality Competing Proposal after the date of this 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 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 5.03(a) (except for any other than a breach that is immaterial breach and unintentional) solely to request in writing the clarification 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 thereof so as to determine whether such Acquisition Inquiry or Competing Proposal constitutes, constitutes or could reasonably be expected to lead to, 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, long as the Company shall as promptly as practicable (and in any event within twenty-four (24) hourshours following receipt thereof or the making of such request) notify provides Parent of any Acquisition Proposal, which notification shall include (i) a copy of such request and the applicable written Acquisition Proposal (or, if oral, the material terms and conditions response of such Acquisition Proposalperson to such request) and (ii2) the identity of the Third Party making inform 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 third party 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 is contractually prohibited by a confidentiality agreement from engaging in place as of the date hereof).
(d) The Company agrees not to release or permit the release of any Person fromdiscussions with, or to waive or permit the waiver or termination of any provision ofotherwise responding to, 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 such third party in good faith, after consultation with the Company Financial Advisor and outside legal counsel, that failure to do so would constitute a breach of the directors’ fiduciary duties under Applicable Lawresponse thereto.
Appears in 1 contract
Sources: Merger Agreement (Innerworkings Inc)