No Solicitations. (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal. (b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)). (c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal." (d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal. (e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Monmouth Capital Corp), Merger Agreement (Monmouth Real Estate Investment Corp)
No Solicitations. (a) Juniper shallDuring the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, and shall cause its Subsidiaries Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors, directors and employees, representatives and agents any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to no more than eight (8) Persons (each such Person, an Acquisition Proposal“Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and request subject also to execution of a customary confidentiality agreement, the return benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or destruction the making of all confidential information regarding Juniper and its Subsidiaries provided any proposal which constitutes, or may reasonably be expected to lead to, any such persons on or prior Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date of this Agreement is terminated pursuant to Section 7.1 hereof, the terms of any confidentiality agreements or otherwise. Juniper Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, participate inengage in discussions or negotiate, initiate or encourage take any other action intended or designed to facilitate (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, ) any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal (as hereinafter defined) or (ii) participate in enter into any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information agreement with respect to Juniper and its Subsidiaries to a Takeover Proposal. On the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such Acquisition Proposaldate. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.
(b) Notwithstanding anything to the contrary contained in Section 5.1.8(a), if at any time until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof (i) the Company receives an unsolicited Takeover Proposal from any Person (excluding any Person who is an Excluded Person) that, in the good faith judgment of the Company Board, is a Superior Proposal (as hereinafter defined) or could reasonably be expected in the good faith judgment of the Company Board to result in a Superior Proposal, (ii) the Company receives a Takeover Proposal from an Excluded Person that, in the good faith judgment of the Company Board, on its face is a Superior Proposal, or (iii) the Company Board determines in good faith that the failure to take some action could cause the Company Board not to satisfy the fiduciary duties of the Company Board as such duties would exist under applicable Law in the absence of this Section 5.1.8, then the Company may (A) furnish information to such Person and (B) negotiate or otherwise engage in substantive discussions with such Person; provided, that prior to furnishing any information to such Person with respect to the Company or its subsidiaries such Person shall sign a customary confidentiality agreement, the benefits of the terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent; provided, further, that any information furnished to such Person will be furnished to Parent as well. The Company must promptly (and in any event within 48 hours) notify Parent in writing if the Company, its subsidiaries or Representatives furnish information to any Person pursuant to this Section 5.1.8(b) (such notice to include the identity of such Persons) or intends to negotiate or otherwise engage in discussions permitted by this Section 5.1.8(b).
(c) Except as set forth in expressly permitted by this Section 6.5(c5.1.8(c), neither the Board of Directors of Juniper Company Board, nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, Juniper's Recommendationin a manner adverse to Parent or Subsidiary, the approval or recommendation by the Company Board or any such committee of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, to be considered at the Special Shareholders Meeting, (ii) approve or recommend or take no position with respect torecommend, or propose publicly to approve or recommend or take no position with respect torecommend, any Acquisition Proposal Takeover Proposal, or (iii) cause Juniper to enter into approve any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) IfTakeover Proposal. Notwithstanding the foregoing, before in the date event that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines Company Board in good faith, faith determines (after consultation with outside counsel and a an independent financial advisor of nationally recognized reputationand legal counsel) that a Takeover Proposal constitutes a Superior Proposal, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with then the Company with respect to any amendment or modification Board may (subject to this Agreement proposed by and the Company, (ifollowing sentences) withdraw or modify its Recommendation approval or recommendation of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, to be considered at the Special Shareholders Meeting. In such an event, the Company Board may (ii) subject to the provisions of Section 8.1(cthis sentence) hereofapprove or recommend such Superior Proposal or terminate this Agreement (and concurrently with such termination, if it so chooses, cause Juniper the Company to terminate this Agreement; enter into any Acquisition Agreement with respect to such Superior Proposal), but in either case only after providing Parent at least three (x3) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of days prior written notice advising it that the Company that Juniper Board has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Superior Proposal, specifying the material terms and conditions of such request or Acquisition Superior Proposal and the identity of identifying the Person making such request or Acquisition Superior Proposal. Juniper will immediately inform Notwithstanding anything to the contrary set forth herein, (i) actions by the Company Board permitted under Section 5.1.8 shall not be deemed to be a withdrawal or modification of any material developments in any discussions the Company Board’s approval or negotiations with respect torecommendation of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, and any material change (ii) a “stop-look-and-listen” communication of the nature contemplated in Rules 14d-9(f) under the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper Exchange Act with respect to an unsolicited tender offer or exchange offer that constitutes a Takeover Proposal, without more, shall not be deemed to be any such request withdrawal or Acquisition Proposal.
(e) modification if, within the period contemplated by Rule 14e-2 under the Exchange Act, the Board of Directors of the Company shall publicly confirm such approval and recommendation and recommend against the acceptance of such tender offer or exchange offer by the shareholders of the Company. Nothing contained in this Section 6.5 5.1.8 shall prohibit Juniper the Company from taking and disclosing to its stockholders shareholders a position contemplated by Rule 14e-2 or Rule 14d-9 14e- 2(a) promulgated under the this Exchange Act or from making any required disclosure to Juniper's stockholders ifthe Company’s shareholders.
(d) For purposes of this Agreement a “Superior Proposal” shall mean a written proposal from a credible third party regarding the acquisition of substantially all the capital stock of the Company, a merger, tender or exchange offer, consolidation or other business combination with the Company or a sale of substantially all the assets of the Company, which proposal (i) is on terms that the Company Board determines in the its good faith judgment of the Special Committee of Juniper, after consultation with outside counselan independent financial adviser of nationally recognized reputation to be more favorable to the Company’s shareholders (in their capacities as shareholders) from a financial point of view than the Merger and the transactions contemplated by this Agreement, failure so taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to disclose would be inconsistent with applicable Lawamend the terms of this Agreement and the Merger); provided(ii) is reasonably capable of being completed on the terms proposed, however, that neither Juniper nor its Board of Directors nor taking into account all financial (including taking into account any committee thereof shall, except as specifically permitted financing required to consummate the transaction contemplated by Section 6.5(cthe Takeover Proposal), withdraw regulatory, legal and other aspects of such proposal, including the likelihood that such transaction will be consummated; and (iii) was not solicited by or modify, or propose to withdraw or modify, its position with respect to on behalf of the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition ProposalCompany in violation of Section 5.1.8(a).
Appears in 2 contracts
Sources: Merger Agreement (Dicks Sporting Goods Inc), Merger Agreement (Dicks Sporting Goods Inc)
No Solicitations. (a) Juniper shallSubject to the terms of Section 7.9(b) below, during the period (x) beginning on the date of this Agreement and shall cause (y) continuing until the thirty (30) day anniversary of the date of this Agreement, the Company, its Subsidiaries and its subsidiaries, the Special Committee and their respective officersRepresentatives shall have the right to (i) initiate, directorssolicit and encourage (including by way of providing non-public information or assistance, employees, representatives but only pursuant to appropriate confidentiality and agents to, immediately cease any activities, standstill agreements prohibiting the purchase of Company Common Stock for a period of six (6) months) inquiries or the making or submission of a Takeover Proposal (as defined below); and (ii) enter into and maintain or continue discussions or negotiations with any parties person or group in furtherance of such inquiries and to obtain or induce any person or group to make or submit a Takeover Proposal. Without limiting the generality of any of the foregoing, the Company acknowledges and agrees that may any violation of any of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of its subsidiaries, shall be ongoing with respect deemed to an Acquisition Proposalconstitute a breach of this Section 7.9(a) by the Company.
(b) Subject to the limitations set forth herein, and request during the return or destruction period (x) beginning on the thirty (30) day anniversary of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to and (y) continuing until the terms of any confidentiality agreements Effective Time, the Company shall not directly or otherwise. Juniper shall notindirectly, and shall cause not authorize or permit any of its Subsidiaries and subsidiaries or any of its and their respective officers, directors, trustees, employees, representatives and agents not to, Representatives directly or indirectlyindirectly to, (i) solicit, participate ininitiate, initiate encourage, induce or encourage facilitate the making, submission or announcement of any Takeover Proposal (including by way of furnishing information), as defined below) or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead toto a Takeover Proposal, (ii) furnish any Acquisition information regarding the Company or any of its subsidiaries to any person in connection with or in response to a Takeover Proposal, (iii) engage in discussions or negotiations with any person with respect to any Takeover Proposal, (iv) approve, endorse or recommend any Takeover Proposal or (iiv) participate in enter into any discussions letter of intent or negotiations similar document or any contract contemplating or otherwise relating to any Company Acquisition Transaction (including by way of furnishing information) regarding any Acquisition Proposalas defined below); provided, however, that ifnothing in this Section 7.9(b) shall prohibit (A) the Company, at or the Board of Directors of the Company or the Special Committee, from furnishing information regarding the Company or any time before the date of its subsidiaries to, or entering into discussions with, any person in response to a Takeover Proposal that is 60 days submitted to the Company by such person (and not withdrawn) if (1) neither the Company nor any Representative of the Company or any of its subsidiaries shall have violated any of the restrictions set forth in this Section 7.9, (2) a majority of the Board of Directors of the Company or the Special Committee concludes in good faith, after consultation with its outside legal counsel, that the date on which failure to take such action, furnish such information or enter into such discussions would be inconsistent with its fiduciary obligations under applicable Company Required Statutory Approvals, (3) a majority of the execution Board of this Agreement by either Party is publicly announced, Juniper's Directors of the Company or the Special Committee determines in good faith, after consultation with its outside counsel and a financial advisor of nationally recognized reputationlegal counsel, that taking such action is, or is would be reasonably likely to be, necessary in order lead to comply with the duties delivery of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5a Company Superior Offer (as defined below), (x4) provided that at least three (3) business days prior to furnishing any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect toentering into discussions with, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) Ifsuch person, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of gives DGAC written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms person (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.extent it may do so without breaching its fiduciary duties as
Appears in 2 contracts
Sources: Merger Agreement (Disc Graphics Inc /De/), Merger Agreement (Dg Acquisition Corp)
No Solicitations. (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper The Company shall not, and shall cause its Subsidiaries not to, permit any of its Representatives to, and shall use its and their respective officers, directors, trustees, employees, representatives and agents best efforts to cause such persons not to, directly or indirectly, (i) solicitinitiate, participate in, initiate solicit or encourage (including by way of furnishing information)encourage, or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, constitutes or is reasonably likely to be, necessary in order lead to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition any Takeover Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries the Company, or, in the event of any unsolicited Takeover Proposal with respect to the Company, engage in negotiations or provide any confidential information or data to any person making such Acquisition relating to any Takeover Proposal (or its designated representatives) pursuant with respect to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposalthe Company.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof The Company shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company notify Parent orally and in writing of any request for information such inquiries, offers or of any Acquisition ProposalTakeover Proposals (including, without limitation, the material terms and conditions of any such request or Acquisition Proposal proposal and the identity of the Person person making such request or Acquisition Proposal. Juniper will it) within 48 hours of the receipt thereof.
(c) The Company shall immediately inform the Company of any material developments in any cease and cause to be terminated all existing discussions or negotiations with respect toand negotiations, and any material change in the terms (including amendments or proposed amendments) ofif any, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper other persons conducted heretofore with respect to any such request or Acquisition ProposalTakeover Proposal regarding the Company.
(ed) Nothing contained Notwithstanding anything in this Section 6.5 shall prohibit Juniper from taking 9.10 to the contrary:
(i) The Company may, prior to the vote of the shareholders of the Company for approval of the Merger (and disclosing not thereafter if the Merger is approved thereby) in response to an unsolicited request therefor, furnish information, including non-public information, to any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) pursuant to a confidentiality agreement on substantially the same terms as provided in the Company Confidentiality Agreement to the extent that the Board of Directors of the Company determines in good faith after consultation with and based on the advice of outside counsel that such action could reasonably be required by their fiduciary duties under applicable law.
(ii) The Company may engage in discussions and negotiations (but may not enter into any binding agreement regarding a Takeover Proposal other than the confidentiality agreement referenced in Section 9.10(d)(i) above) with any Person or group that has made an unsolicited Takeover Proposal, among other things, to determine whether such proposal (as opposed to any further negotiated proposal) is a Superior Takeover Proposal and (ii) the Company may take and disclose to its stockholders shareholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated 14e-2(a) following the Company's receipt of a Takeover Proposal that is in the form of a tender offer under Section 14(e) of the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition ProposalAct.
Appears in 1 contract
No Solicitations. (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper The Company shall not, and shall cause the Subsidiary not to, and shall not authorize and shall use its Subsidiaries and commercially reasonable efforts to cause its and their respective officers, directors, trustees, employees, representatives and agents the Subsidiary’s Representatives not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, encourage the submission of any inquiries Takeover Proposal or the making of any proposal that constitutes, or may could reasonably be expected to lead toto any Takeover Proposal, any Acquisition Proposal or, subject to Section 5.2(b), (i) encourage, solicit, initiate, induce, conduct, engage or (ii) participate in in, any discussions or negotiations with, disclose any non-public information relating to the Company or any Subsidiary to, afford access to the business, properties, assets, books or records of the Company or the Subsidiary to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or the Subsidiary or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇ ▇▇), (▇▇▇) enter into any binding or non-binding agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”), or (iv) grant approval pursuant to any “moratorium”, “control share acquisition”, “business combination”, “fair price”, or other form of anti-takeover law, including by way Section 203 of furnishing informationthe DGCL to any Person (other than MM). Subject to Section 5.2(b), neither the Company Board nor any committee thereof shall (i) regarding fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to MM, the Company Board Recommendation, (ii) recommend a Takeover Proposal, (iii) fail to recommend against acceptance of any Acquisition Proposal; providedtender offer or exchange offer for the shares of Company Common Stock within ten (10) Business Days after the commencement of such offer, however(iv) make any public statement inconsistent with the Company Board Recommendation, that ifor (v) resolve or agree to take any of the foregoing actions (any of the foregoing, at a “Company Adverse Recommendation Change”). The Company shall, and shall cause the Subsidiary to, cease immediately and cause to be terminated, and shall not authorize, and shall use commercially reasonable efforts not to permit, any time before 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 the Subsidiary that is 60 days after was furnished by or on behalf of the date on Company and the Subsidiary to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding Section 5.2(a), prior to the receipt of the Company Stockholders’ Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 5.2(c) and Section 5.2(d), (i) participate in negotiations or discussions with any third party from which the execution Company received an unsolicited Takeover Proposal that the Company Board believes in good faith could constitute or result in a Superior Proposal, (ii) thereafter furnish to such third party (and any persons acting in concert with such third party and to their respective financing sources and Representatives) non-public information relating to the Company or the Subsidiary pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of this Agreement by either Party is publicly announcedwhich confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to MM), Juniper's Special Committee (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputationlegal counsel, that the failure to take any such action is, or is could reasonably likely be expected to be, necessary cause the Company Board to be in order breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to comply the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) -38- promulgated under the Exchange Act with regard to a Takeover Proposal and the filing with the duties SEC of Juniper's Special Committee such disclosure pursuant to Juniper Rule 14d-9 and Rule 14e-2(a) shall not constitute a Company Adverse Recommendation Change in and of itself, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 5.2(b) unless the Company shall have delivered to MM a prior written notice advising MM that it intends to take such action. The Company shall notify MM promptly (but in no event later than twenty-four (24) hours) after it obtains knowledge of the receipt by the Company (or Juniper's stockholders under applicable lawany of its Representatives) of any Takeover Proposal, Juniper mayany inquiry that would reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating to the Company or the Subsidiary or for access to the business, properties, assets, books or records of the Company or the Subsidiary 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 MM reasonably informed, on a reasonably current basis, of the status and of any material change to the terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide MM with a list of any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided that Juniper has complied in all respects with its obligations under this Section 6.5to any third party, in response and, to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any extent such information has not been or contemporaneously is previously provided to representatives MM, copies of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposalinformation.
(bd) Except as set forth in this Section 6.5(c5.2(d), neither the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit the Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of Directors of Juniper nor any committee thereof shall the Company Stockholders’ Approval, the Company Board may make a Company Adverse Recommendation Change or enter into (or permit the Subsidiary to enter into) a Company Acquisition Agreement, if: (i) withdraw the Company promptly notifies MM, in writing, at least five (5) Business Days (the “Notice Period”) before making such Company Adverse Recommendation Change or modifyentering into (or causing the Subsidiary to enter into) such Company Acquisition Agreement, or propose of its intention to withdraw or modifytake such action with respect to a Superior Proposal, Juniper's Recommendation, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) approve or recommend or take no position with respect to, or propose the Company attaches to approve or recommend or take no position with respect to, any Acquisition such notice the most current version of the proposed agreement for such Superior Proposal or (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause Juniper the Subsidiary to, and shall use its commercially reasonable efforts to enter into any agreement related cause its and the Subsidiary’s Representatives to, during the Notice Period, negotiate with MM in good faith to any Acquisition Proposal (other than a confidentiality make such adjustments in the terms and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution conditions of this Agreement by either Party so that such Takeover Proposal ceases to constitute a Superior Proposal, if MM, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is publicly announcedany material revision to the terms of a Superior Proposal, Juniper's Special Committee including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Notice Period subsequent to the time the Company notifies MM of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consultation consulting with outside legal counsel and a financial advisor of nationally recognized reputationthe Company Financial Advisor, that such action is necessary in order Takeover Proposal continues to comply with constitute a Superior Proposal after taking into account any adjustments made by MM during the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" Notice Period in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposalthis Agreement.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cover All Technologies Inc)
No Solicitations. Prior to the Effective Time or until the termination of this Agreement, no member of Holding's consolidated group shall, without the prior approval of Whitney: (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, solicit or initiate inquiries or encourage (including by way of furnishing information)proposals with respect to any Acquisition Transaction, or take any other action designed or reasonably likely (b) except to facilitate or encourage, any inquiries or the making extent determined by the Board of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way Directors of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines Holding in good faith, after consultation with outside counsel its financial advisors and a financial advisor of nationally recognized reputationits legal counsel, that such action isto be required to discharge properly the directors' fiduciary duties to Holding's consolidated group and its shareholders,
(i) furnish any information relating to, or is reasonably likely to beparticipate in any negotiations or discussions concerning, necessary any Acquisition Transaction or any other acquisition or purchase of all or a substantial portion of its assets, or of a substantial equity interest in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5it, (xii) provided that withdraw its recommendation to the shareholders of Holding of the Company Merger, or (iii) make a recommendation of any other Acquisition Transaction, or any other business combination with it, other than as contemplated by this Agreement (and in no event will any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) be supplied except pursuant to a confidentiality agreement in form and standstill agreement substance substantially the same as the Confidentiality Agreement). Each member of Holding's consolidated group shall instruct its officers, directors, agents and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor affiliates to refrain from doing any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect toforegoing, and will notify Whitney immediately if any material change in the terms (including amendments such inquiries or proposed amendments) ofproposals are received by it, any such request information is requested from it, or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request negotiations or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking discussions are sought to be initiated with it or any of its officers, directors, agents and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Lawaffiliates; provided, however, that neither Juniper nor its nothing contained herein shall be deemed to prohibit any officer or director of any member of Holding's consolidated group from taking any action that the Board of Directors nor of such member, as the case may be, determines, in good faith after consultation with outside legal counsel, is required by law or is required to discharge his fiduciary duties to Holding's consolidated group and Holding's shareholders. Holding and the Bank shall immediately cease and cause to be terminated all existing discussions or negotiations with any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position persons conducted heretofore with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an any Acquisition ProposalTransaction.
Appears in 1 contract
Sources: Agreement and Plan of Merger (First National Bancshares Inc/ Fl/)
No Solicitations. Subject to Section 10 hereof, each Principal Stockholder, in such Principal Stockholder's capacity as a beneficial owner of Shares and New Shares (as defined in Section 7 hereof), agrees that such Principal Stockholder shall not, nor shall such Principal Stockholder permit any Person "controlling" it or under its "control" (as such term is used in the Exchange Act) to, (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) indirectly solicit, participate ininitiate, initiate or encourage (including by way of furnishing information), propose or take any other action designed or reasonably likely to facilitate any Takeover Proposal, (b) enter into any agreement, arrangement or encourageunderstanding with respect to any Takeover Proposal (including any letter of intent or agreement in principle), (c) initiate or participate in any inquiries way in any negotiations or the making of discussions regarding a Takeover Proposal, (d) furnish or disclose to any proposal that constitutesThird Party any information with respect to, or may which would be reasonably be expected to lead to, any Acquisition Takeover Proposal, (e) solicit proxies or become a "participant" in or otherwise assist a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) that would reasonably be expected to compete with, or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction (including with respect to any Takeover Proposal or any action related thereto), (iif) participate otherwise encourage or assist any Person in taking or planning any discussions or negotiations action (including by way of furnishing informationany Takeover Proposal or any action related thereto) regarding any Acquisition Proposal; providedwhich would reasonably be expected to compete with or otherwise would reasonably be expected to interfere with, howeverdelay, that ifdiscourage, at any time before adversely affect or inhibit the date that is 60 days after timely consummation of, the date on which Transaction or would reasonably be expected to result in the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action isabandonment or termination of, or is reasonably likely failure to beconsummate, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5Transaction, (xg) provided that any such information has been directly or contemporaneously is provided to representatives indirectly encourage, initiate or cooperate in a stockholders' vote or action by written consent of the Company's Special Committeestockholders that would reasonably be expected to compete with or would reasonably be expected to interfere with, furnish information with respect delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to Juniper and its Subsidiaries to result in the person making such Acquisition Proposal (abandonment or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modifytermination of, or propose failure to withdraw or modifyconsummate, Juniper's Recommendation, the Transaction (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company including with respect to any amendment Takeover Proposal or modification to this Agreement proposed by the Company, (iany action related thereto) withdraw or modify its Recommendation or (iih) subject to the provisions become a member of a "group" (as such term is used in Section 8.1(c13(d) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(dExchange Act) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request voting securities of the Company for any purpose that would reasonably be expected to compete with, or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing would reasonably be expected to its stockholders a position contemplated by Rule 14e-2 interfere with, delay, discourage, adversely affect or Rule 14d-9 promulgated under inhibit the Exchange Act timely consummation of the Transaction or from making any disclosure would reasonably be expected to Juniper's stockholders if, result in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw abandonment or modifytermination of, or propose failure to withdraw or modify, its position consummate the Transaction (including with respect to any Takeover Proposal or any action related thereto). Each of the Merger Principal Stockholders shall be liable for any breach of this Section 5 by any Person controlling it or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposalunder its control.
Appears in 1 contract
No Solicitations. (a) Juniper Neither CTI nor the Company shall, and nor shall cause its Subsidiaries and its and either permit the other or their other Affiliates to, nor shall either of them authorize or permit, or permit the other or their other Affiliates to authorize or permit, their respective officers, directors, employeesemployees or any investment banker, representatives and agents tofinancial advisor, immediately cease any activitiesattorney, discussions accountant or negotiations with any parties that may be ongoing with respect to an Acquisition Proposalother representative retained by CTI, and request the return Company or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to Affiliate (each of the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall notforegoing, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not a "Seller Representative") to, directly or indirectlyindirectly through any other Person, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encouragefacilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal Takeover Proposal, or (ii) participate in agree to endorse any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Takeover Proposal; provided, however, that if, at any time before the date that is 60 days . From and after the date on which time that this Agreement shall have been duly approved and adopted by the affirmative vote of the holders of all outstanding shares of Company Common Stock, neither CTI nor the Company shall approve or recommend, or propose to approve or recommend any Takeover Proposal, or enter into, or permit the other or their other Affiliates to enter into, any letter of intent, agreement in principle, acquisition agreement or similar agreement with respect to any Takeover Proposal (each of the foregoing, a "Takeover Agreement"). Upon the execution of this Agreement by either Party is publicly announcedAgreement, Juniper's Special Committee determines in good faitheach of CTI and the Company will, after consultation and will cause their other Affiliates and all Seller Representatives to, immediately cease any existing activities, discussions or negotiations with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information parties heretofore conducted with respect to Juniper and its Subsidiaries to any of the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposalforegoing.
(b) Except as set forth in Section 6.5(c)From and after the time that this Agreement shall have been duly approved and adopted by the affirmative vote of the holders of all outstanding shares of Company Common Stock, neither the Board of Directors of Juniper nor any committee thereof of CTI or the Company shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendationin a manner adverse to Parent or Sub, the approval by such Boards of Directors or any such committees of this Agreement or the Contemplated Transactions, (ii) approve or recommend or take no position with respect toapprove, or propose to approve or recommend or take no position with respect toapprove, any Acquisition Takeover Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a))Takeover Agreement.
(c) If, before CTI irrevocably agrees to vote all shares of Company Common Stock held by it for the date that is 60 days after the date on which the execution approval and adoption of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
No Solicitations. (a) Juniper No party hereto shall, and each such party shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents subsidiaries not to, immediately cease permit any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall notRepresentatives to, and shall use its best efforts to cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents such persons not to, directly or indirectly, (i) solicitinitiate, participate in, initiate solicit or encourage (including by way of furnishing information)encourage, or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, constitutes or is reasonably likely to belead to any Takeover Proposal (as defined below), necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5or, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5event of any unsolicited Takeover Proposal, (x) provided that engage in negotiations or provide any such confidential information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related data to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect person relating to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Takeover Proposal. For purposes of this Section 6.5(c), "50%" Each party shall be substituted for "20%" in notify the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company other orally and in writing of any request for information such inquiries, offers or of any Acquisition Proposalproposals (including, without limitation, the material terms and conditions of any such request or Acquisition Proposal proposal and the identity of the Person person making it) within 24 hours of the receipt thereof and shall give the other five (5) days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such request inquiry, offer or Acquisition Proposalproposal. Juniper will Each party hereto shall immediately inform the Company of any material developments in any cease and cause to be terminated all existing discussions or negotiations with respect toand negotiations, and any material change in the terms (including amendments or proposed amendments) ofif any, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper other persons conducted heretofore with respect to any such request or Acquisition Takeover Proposal.
(e) Nothing contained . Notwithstanding anything in this Section 6.5 shall prohibit Juniper from taking and disclosing 7.11 to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders ifcontrary, in the event of an unsolicited Takeover Proposal, unless the DRI Shareholders' Approval and the CNG Shareholders' Approval have both been obtained, DRI or CNG may participate in discussions or negotiations with, furnish information to, and afford access to the properties, books and records of such party and its subsidiaries to any person in connection with a possible Takeover Proposal with respect to such party by such person, if and to the extent that (A) the Board of Directors of such party has reasonably concluded in good faith judgment of the Special Committee of Juniper, (after consultation with outside counselits financial advisors) that the person or group making the Takeover Proposal will have adequate sources of financing to consummate the Takeover Proposal and that the Takeover Proposal is more favorable to such party's shareholders than the Mergers (in the case of DRI) and the Second Merger (in the case of CNG), failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its (B) the Board of Directors nor any committee thereof shallof such party is advised in a written, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose reasoned opinion of outside counsel that a failure to withdraw or modify, do so would result in a breach of its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.fiduciary duties under applicable law and (C) such party has entered A-27
Appears in 1 contract
No Solicitations. (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper The Company shall not, and shall cause the Subsidiary not to, and shall not authorize and shall use its Subsidiaries and commercially reasonable efforts to cause its and their respective officers, directors, trustees, employees, representatives and agents the Subsidiary’s Representatives not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, encourage the submission of any inquiries Takeover Proposal or the making of any proposal that constitutes, or may could reasonably be expected to lead toto any Takeover Proposal, any Acquisition Proposal or, subject to Section 5.2(b), (i) encourage, solicit, initiate, induce, conduct, engage or (ii) participate in in, any discussions or negotiations with, disclose any non-public information relating to the Company or any Subsidiary to, afford access to the business, properties, assets, books or records of the Company or the Subsidiary to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or the Subsidiary or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, S▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇ ▇▇), (▇▇▇) enter into any binding or non-binding agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”), or (iv) grant approval pursuant to any “moratorium”, “control share acquisition”, “business combination”, “fair price”, or other form of anti-takeover law, including by way Section 203 of furnishing informationthe DGCL to any Person (other than MM). Subject to Section 5.2(b), neither the Company Board nor any committee thereof shall (i) regarding fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to MM, the Company Board Recommendation, (ii) recommend a Takeover Proposal, (iii) fail to recommend against acceptance of any Acquisition Proposal; providedtender offer or exchange offer for the shares of Company Common Stock within ten (10) Business Days after the commencement of such offer, however(iv) make any public statement inconsistent with the Company Board Recommendation, that ifor (v) resolve or agree to take any of the foregoing actions (any of the foregoing, at a “Company Adverse Recommendation Change”). The Company shall, and shall cause the Subsidiary to, cease immediately and cause to be terminated, and shall not authorize, and shall use commercially reasonable efforts not to permit, any time before 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 the Subsidiary that is 60 days after was furnished by or on behalf of the date on Company and the Subsidiary to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding Section 5.2(a), prior to the receipt of the Company Stockholders’ Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 5.2(c) and Section 5.2(d), (i) participate in negotiations or discussions with any third party from which the execution Company received an unsolicited Takeover Proposal that the Company Board believes in good faith could constitute or result in a Superior Proposal, (ii) thereafter furnish to such third party (and any persons acting in concert with such third party and to their respective financing sources and Representatives) non-public information relating to the Company or the Subsidiary pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of this Agreement by either Party is publicly announcedwhich confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to MM), Juniper's Special Committee (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputationlegal counsel, that the failure to take any such action is, or is could reasonably likely be expected to be, necessary cause the Company Board to be in order breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to comply the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal and the filing with the duties SEC of Juniper's Special Committee such disclosure pursuant to Juniper Rule 14d-9 and Rule 14e-2(a) shall not constitute a Company Adverse Recommendation Change in and of itself, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 5.2(b) unless the Company shall have delivered to MM a prior written notice advising MM that it intends to take such action. The Company shall notify MM promptly (but in no event later than twenty-four (24) hours) after it obtains knowledge of the receipt by the Company (or Juniper's stockholders under applicable lawany of its Representatives) of any Takeover Proposal, Juniper mayany inquiry that would reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating to the Company or the Subsidiary or for access to the business, properties, assets, books or records of the Company or the Subsidiary 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 MM reasonably informed, on a reasonably current basis, of the status and of any material change to the terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide MM with a list of any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided that Juniper has complied in all respects with its obligations under this Section 6.5to any third party, in response and, to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any extent such information has not been or contemporaneously is previously provided to representatives MM, copies of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposalinformation.
(bd) Except as set forth in this Section 6.5(c5.2(d), neither the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit the Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of Directors of Juniper nor any committee thereof shall the Company Stockholders’ Approval, the Company Board may make a Company Adverse Recommendation Change or enter into (or permit the Subsidiary to enter into) a Company Acquisition Agreement, if: (i) withdraw the Company promptly notifies MM, in writing, at least five (5) Business Days (the “Notice Period”) before making such Company Adverse Recommendation Change or modifyentering into (or causing the Subsidiary to enter into) such Company Acquisition Agreement, or propose of its intention to withdraw or modifytake such action with respect to a Superior Proposal, Juniper's Recommendation, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) approve or recommend or take no position with respect to, or propose the Company attaches to approve or recommend or take no position with respect to, any Acquisition such notice the most current version of the proposed agreement for such Superior Proposal or (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause Juniper the Subsidiary to, and shall use its commercially reasonable efforts to enter into any agreement related cause its and the Subsidiary’s Representatives to, during the Notice Period, negotiate with MM in good faith to any Acquisition Proposal (other than a confidentiality make such adjustments in the terms and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution conditions of this Agreement by either Party so that such Takeover Proposal ceases to constitute a Superior Proposal, if MM, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is publicly announcedany material revision to the terms of a Superior Proposal, Juniper's Special Committee including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Notice Period subsequent to the time the Company notifies MM of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consultation consulting with outside legal counsel and a financial advisor of nationally recognized reputationthe Company Financial Advisor, that such action is necessary in order Takeover Proposal continues to comply with constitute a Superior Proposal after taking into account any adjustments made by MM during the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" Notice Period in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposalthis Agreement.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Majesco)
No Solicitations. Each of the Company and Eagles (as applicable, the “Party”) shall comply with the relevant provisions of this Section 6.5. The other party is referred to in this Section 6.5 as the “Other Party.”
(a) Juniper The Party shall, and shall cause its Subsidiaries subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper the Party and its Subsidiaries subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper The Party shall not, and shall cause its Subsidiaries subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before prior to the date that is 60 days after Company Stockholders Meeting, the date on which Board of Directors or Trustees of the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or it is reasonably likely necessary to be, necessary do so in order to comply with its fiduciary duties to the duties of Juniper's Special Committee to Juniper or Juniper's Party’s stockholders under applicable law, Juniper the Party may, provided that Juniper the Party has complied in all respects with its obligations under this Section 6.56.5(a), in response to an Acquisition a Superior Proposal received by Juniper the Party after the date hereof hereof, and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper the Party and its Subsidiaries subsidiaries to the person making such Acquisition Superior Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement no less restrictive on the other party than the applicable Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Acquisition Superior Proposal.
(b) Except as set forth in this Section 6.5(c)6.5, neither the Board of Directors or Trustees of Juniper the Party nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendationthe approval or recommendation by such Board of Directors or Trustees or such committee of the Offer, the Merger or this Agreement, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper the Party to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition a Superior Proposal as contemplated by Section 6.5(a)).
(c) If. Notwithstanding the foregoing, before if prior to the date that is 60 days after Company Stockholders Meeting the date on which Board of Directors or Trustees of the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action it is necessary required to do so in order to comply with its fiduciary duties to the duties stockholders of Juniper's Special Committee to Juniper or Juniper's stockholders the Party under applicable Lawlaw, Juniper's the Board of Directors of the Party may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper the Party has complied in all respects with its obligations under this Section 6.5 and has negotiated 6.5(b), in good faith with the Company with respect response to any amendment or modification to this Agreement proposed a Superior Proposal that was received by the CompanyParty after the date hereof, (ix) withdraw or modify its Recommendation approval or recommendation of the Offer, the Merger or this Agreement or (iiy) subject to the provisions of Section 8.1(c8.1(e) or (f), as applicable, hereof, cause Juniper to terminate this Agreement; , but in either each such case (x) only at a time that is after the fifth business day following the Other Party’s receipt by the Company's Special Committee of written notice advising the Company Other Party that Juniper the Board of Directors or Trustees of the Party has received a definitive Superior Proposal (after taking into account and considering any revised Acquisition Proposal made by Eagles in light of such Superior Proposal), specifying the material terms and containing conditions of such Superior Proposal and identifying the information about person making such Acquisition Proposal specified by Section 6.5(d) Superior Proposal, and (y) only if the Party is in compliance with this Section 6.5 and simultaneously with taking such action it also executes a definitive agreement to implement such Superior Proposal.
(c) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal, offer or expression of interest by any third party relating a merger, consolidation or other business combination involving the Party or any subsidiary of the Party, or any purchase of more than 15% of the consolidated assets of the Party (including the shares and assets of its subsidiaries) or more than 15% of the shares of the Party (other the pursuant to the exercise of Company Stock Options in accordance with their terms) or the issuance of any securities (or rights to acquire securities) of the Party or any subsidiary of the Party, or any similar transaction, or any agreement, arrangement or understanding requiring the Party to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. Any material modification of an Acquisition Proposal (including any modification of the economic terms) shall constitute a new Acquisition Proposal. For purposes of this Section 6.5(c)Agreement, "50%" shall be substituted a “Superior Proposal” means any bona fide Acquisition Proposal for "20%" a transaction in the definition which all of the term "Acquisition Proposal."
stock or assets of the Party are acquired by a third party, including by merger, consolidation or other business combination, on terms that the Board of Directors or Trustees of the Party determines in its good faith judgment (dafter consultation with a financial advisor of nationally recognized reputation) Juniper shall immediately advise to be more favorable to the Company orally Party’s stockholders, from a financial point of view, than the Merger and in writing the Repurchase Offer (taking into account all aspects of any request for information or of any Acquisition Proposalthe proposal, the material terms party making the proposal and conditions any changes to the Merger and the Repurchase Offer proposed by the Other Party in response to the receipt by the Party of such request or Acquisition Proposal Superior Proposal) and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of which is not subject to any material developments in contingency, including any discussions or negotiations with respect tocontingency related to financing, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders ifunless, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shallor Trustees of the Party, except as specifically permitted such contingency is reasonably capable of being satisfied by Section 6.5(c)such third party, withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposaland that is otherwise reasonably capable of being consummated in a timely fashion.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sunset Financial Resources Inc)
No Solicitations. (a) Juniper shallExcept as otherwise provided herein, unless and until this Agreement shall have been terminated in accordance with its terms, the Company shall not, and shall cause each of its Subsidiaries and its and their respective Affiliates, officers, directors, employees, representatives advisors, consultants, shareholders, Representatives and agents not to, immediately cease directly or indirectly, initiate, solicit or encourage any activities, discussions inquiries or negotiations with the making or implementation of any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall .
(b) The Company will not, and shall cause will direct its Subsidiaries and its and their respective officers, directors, trusteesofficers, employees, representatives advisors, consultants, shareholders, Representatives and agents not to, directly or indirectly, (i) solicitdiscuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any Acquisition Proposal, (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Proposal, (iii) furnish or cause to be furnished to any Person or entity, any information concerning the business, operations, properties or assets of the Company in connection with an Acquisition Proposal (including without limitation any nonpublic information regarding the Acquired Companies), or (iv) otherwise cooperate in any way with, or assist or participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries effort or attempt by any other Person or entity to do or seek any of the making foregoing.
(c) The Company shall, and shall direct its Representatives to, immediately cease and cause to be terminated any existing discussions or negotiations with any persons or entities (other than Buyer and Merger Sub) conducted heretofore with respect to any of the foregoing.
(d) Promptly after receipt by either of the Acquired Companies or their respective Representatives of any proposal that constitutes, Acquisition Proposal or may any written or oral request for nonpublic information or inquiry which the Company reasonably believes would reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material Company shall within twenty-four (24) hours after receipt of such Acquisition Proposal or, if by its Representatives, after being notified of such Acquisition Proposal, provide Buyer with written notice of the terms and conditions of such Acquisition Proposal, request or Acquisition Proposal inquiry, and the identity of the Person or group making any such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal. Juniper will immediately inform , request or inquiry, the Company shall promptly keep Buyer informed in all material respects of any material developments in any discussions or negotiations with respect to, the status and any material change in the terms details (including any amendments or proposed amendmentsamendments (including any withdrawal thereof)) of, of any such Acquisition Proposal, request or Acquisition Proposalinquiry. Juniper will promptly provide Promptly after the date hereof, the Company with any agreements entered into by Juniper with respect shall make commercially reasonable efforts to cause to be returned or destroyed all confidential information of the Acquired Companies provided to any such request potential investor or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect purchaser pursuant to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition ProposalCompany’s sale process.
Appears in 1 contract
No Solicitations. (a) Juniper shall, Until the earlier of the Fourth Effective Time and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of termination of this Agreement pursuant to the terms provisions of Section 13.1, none of the Selling Companies or any confidentiality agreements of their Subsidiaries shall take nor shall the Selling Companies permit any of the Selling Companies' or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, Subsidiaries' directors, trusteesofficers, employees, advisors, representatives and or agents not to, to take (directly or indirectly, ) any of the following actions with any Person other than Parent and its designees: (i) solicit, participate inentertain, initiate initiate, facilitate or encourage (including by way of furnishing information)any proposal or offer from, or take any other action designed participate or reasonably likely to facilitate engage in or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (including whether such Subsidiary is in existence on the date hereof or is hereafter organized), (ii) provide any information with respect to the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by way any such Person with regard to, any possible Acquisition Proposal for any of furnishing informationthe Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) regarding approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition ProposalProposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the Selling Companies' directors, officers, employees, advisors, representatives or agents to take any such action; provided, however, that ifthat, at any time before prior to the date that is 60 days after the date on which the execution approval and adoption of this Agreement by either Party is publicly announcedthe Stockholders, Juniper's Special Committee determines if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 9.9, the Selling Companies may furnish non-public information with respect to the Selling Companies and their respective Subsidiaries to the Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) the Selling Companies Boards determine in good faith, after consultation with receiving advice from their outside counsel and a financial advisor of nationally recognized reputationcounsel, that such action is, or is reasonably likely failure to be, necessary in order do so would violate their fiduciary duties to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders Stockholders under applicable lawLaw, Juniper may, provided and (B) the Selling Companies Boards determine that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to is a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Superior Proposal.
(b) Except as set forth The Selling Companies shall immediately cease and cause to be terminated any such Contacts or negotiations with any Person relating to any such transaction or Acquisition Proposal. In addition to the foregoing, if (after this Agreement is executed and delivered by the Selling Companies and prior to the First Effective Time or the earlier termination of this Agreement in accordance with Section 6.5(c)13.1) the Selling Companies receive any offer or proposal (formal or informal, neither the Board of Directors of Juniper nor any committee thereof shall (ioral, written or otherwise) withdraw or modifyrelating to, or propose to withdraw any inquiry or modify, Juniper's Recommendation, (ii) approve or recommend or take no position contact from any Person with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a))Proposal, the Selling Companies shall immediately notify Parent thereof and provide Parent with the details thereof, including the identity of the Person or Persons making such offer, proposal, inquiry or contact and shall keep Parent fully informed on a current basis of the status and details of any such offer or proposal and of any modifications to the terms thereof.
(c) If, before Each of the date Selling Companies and Parent acknowledge that is 60 days after the date on which the execution of this Section 9.9 was a significant inducement for Parent to enter into this Agreement by and the absence of such a provision would have resulted in either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation a material reduction in the consideration to be paid to the Stockholders in the Mergers or (ii) subject the failure to the provisions of Section 8.1(c) hereof, cause Juniper induce Parent to terminate enter into this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
No Solicitations. (a) Juniper shall, The Company represents and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease warrants that it has terminated any activities, discussions or negotiations with any parties relating to, or that may reasonably be ongoing with respect expected to an lead to, any Acquisition Proposal, Proposal (as defined herein) and will promptly request the return or destruction of all confidential information regarding Juniper and its Subsidiaries the Company provided to any such persons on or third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwiseentered into in connection with any such Acquisition Proposal. Juniper Except as permitted by this Agreement, the Company shall not, and shall cause not authorize or permit any of its Subsidiaries and its and their respective officers, directorsdirectors or employees or any investment banker, trusteesfinancial advisor, employeesattorney, representatives and agents not accountant or other representative retained by it to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing non-public information), or take any other action designed or reasonably likely to facilitate or encouragefacilitate, any inquiries or the making of any proposal that constitutesconstitutes an Acquisition Proposal, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) engage or participate in any discussions or negotiations (including by way of furnishing information) regarding with, or provide any confidential information or data to, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; providedand the Company will immediately cease and cause to be terminated any existing activities, however, that if, at negotiations or discussions with any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information persons conducted heretofore with respect to Juniper any of the foregoing and its Subsidiaries will take the necessary steps to inform the person making such Acquisition Proposal (individuals or its designated representatives) pursuant entities referred to a confidentiality and standstill agreement and (y) participate above of the obligations undertaken in discussions or negotiations regarding such Acquisition Proposalthis Section.
(b) Except as set forth in Section 6.5(c), neither the The Company Board of Directors of Juniper nor any committee thereof shall (i) may not withdraw or modify, or propose to withdraw or modify, Juniper's Recommendationin a manner adverse to Parent or MergerCo, (ii) approve its approval or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution recommendation of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with or the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable LawMerger; provided, however, that neither Juniper nor its notwithstanding anything contained in this Section 7.1 or any other provision of this Agreement, prior to the Company shareholders meeting, the Company Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), may so withdraw or modify, or propose to withdraw or modify, its approval or recommendation of this Agreement or the Merger and the Company may participate in discussions or negotiations with or furnish information to a third party making an unsolicited Acquisition Proposal (a "Potential Acquiror") or approve or recommend an unsolicited Acquisition Proposal, if (i) a majority of the disinterested directors of the Company Board determines in good faith, after consultation with its independent financial advisor, that a Potential Acquiror has submitted to the Company a written Acquisition Proposal which sets forth a price to be paid by the Potential Acquiror and which, if consummated, would be more favorable to the Company's shareholders, from a financial point of view, than the Merger (a "Superior Proposal"), (ii) the Company Board has determined in good faith, based on consultation with its outside legal counsel experienced in such matters (which may include ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, the Company's current counsel) that such written Acquisition Proposal appears to be a Superior Proposal based upon the terms and conditions set forth therein, (iii) the Company Board has determined in good faith, based on consultation with its independent financial advisor, that such Potential Acquiror is financially capable of consummating such Superior Proposal and that such Superior Proposal is likely to be consummated, and (iv) a majority of the disinterested directors of the Company Board determines in good faith, after receiving advice from such outside legal counsel that participating in discussions or negotiations or furnishing information or approving or recommending the unsolicited Acquisition Proposal is required by the Company Board's fiduciary duties under applicable law.
(c) The Company shall promptly notify (but in any event within one (1) business day Parent of the Company's first receipt of a written Acquisition Proposal and of the material terms and conditions thereof and any material changes thereto. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent the identity of the Potential Acquiror making any such Acquisition Proposal.
(d) Nothing contained in this Section 7.1 shall prohibit the Company from at any time taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(e) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company representing 15% or more of the assets of the Company, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Company Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Merger Company or this Agreement (vi) transaction that is similar in form, substance or approve or recommendpurpose to any of the foregoing transactions; provided, or propose to approve or recommendhowever, an that the term "Acquisition Proposal" shall not include the Merger and the other Transactions.
Appears in 1 contract
Sources: Merger Agreement (Inverness Medical Technology Inc/De)
No Solicitations. (a) Juniper During the Interim Period, Seller shall not take, and shall cause the Acquired Companies not to take, and shall use commercially reasonable efforts to cause its other Affiliates and their respective Representatives not to take any action to initiate, solicit, negotiate, assist, or facilitate (including by furnishing confidential information with respect to the Acquired Companies, permitting access to their Assets or their books and records or participating in any discussions in respect thereof, in each case, for the purposes contemplated by this Section 6.17(a)) any offer from any Person concerning any proposal for a merger or other business combination or similar transaction to which the Acquired Companies is a party or the acquisition of any Equity Interest in, or of all or substantially all of the Assets of, any Acquired Company other than, for purposes of clarity, transactions involving Seller Guarantor or its Affiliates (other than the Acquired Companies or their respective Assets) that do not impact the enforceability of this Agreement, the Seller Guaranty or any Ancillary Agreements. Seller shall, and shall cause the Acquired Companies to, and shall exercise its Subsidiaries and commercially reasonable efforts to cause its Affiliates and their respective officers, directors, employees, representatives and agents Representatives to, immediately promptly cease any activities, such discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return Person (other than Buyer or destruction its Affiliates) in progress as of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposalhereof.
(b) Except Within ten (10) Business Days of the date of this Agreement, the Parties shall use commercially reasonable efforts, or shall use commercially reasonable efforts to cause their respective Affiliates, to execute and deliver a Contract granting Buyer and its Affiliates exclusivity during the Interim Period on terms, inter alia, substantially as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i6.17(a) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by the electric generating facility described in Section 6.5(a))1.1-N of the Seller Disclosure Schedule.
(c) If, before During the date that is 60 days period after the date Closing Date, Seller and its Affiliates shall not employ, retain or hire or solicit for employment, retention or hire the Person(s) set forth on which Section 6.17(b) of the execution Seller Disclosure Schedule and shall not induce such Person(s) set forth on Section 6.17(b) of this Agreement by either Party is publicly announcedthe Seller Disclosure Schedule to terminate or breach an employment, Juniper's Special Committee determines in good faithcontractual or other relationship with any Acquired Company, after consultation with outside counsel and a financial advisor of nationally recognized reputationits Affiliates, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect any vendor or contractor to any amendment Acquired Company or modification to this Agreement proposed by its Affiliates; provided the Company, (iforegoing covenants and restrictions shall not include any general solicitations of employment not specifically targeted at the Person(s) withdraw or modify its Recommendation or (iiset forth on Section 6.17(b) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition ProposalSeller Disclosure Schedule, including responses to general advertisements."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Macquarie Infrastructure Corp)
No Solicitations. (a) Juniper shall, Until the earlier of the Fourth Effective Time and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of termination of this Agreement pursuant to the terms provisions of Section 13.1, none of the Selling Companies or any confidentiality agreements of their Subsidiaries shall take nor shall the Selling Companies permit any of the Selling Companies’ or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, Subsidiaries’ directors, trusteesofficers, employees, advisors, representatives and or agents not to, to take (directly or indirectly, ) any of the following actions with any Person other than Parent and its designees: (i) solicit, participate inentertain, initiate initiate, facilitate or encourage (including by way of furnishing information)any proposal or offer from, or take any other action designed participate or reasonably likely to facilitate engage in or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (including whether such Subsidiary is in existence on the date hereof or is hereafter organized), (ii) provide any information with respect to the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by way any such Person with regard to, any possible Acquisition Proposal for any of furnishing informationthe Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) regarding approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition ProposalProposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the Selling Companies’ directors, officers, employees, advisors, representatives or agents to take any such action; provided, however, that ifthat, at any time before prior to the date that is 60 days after the date on which the execution approval and adoption of this Agreement by either Party is publicly announcedthe Stockholders, Juniper's Special Committee determines if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 9.9, the Selling Companies may furnish non-public information with respect to the Selling Companies and their respective Subsidiaries to the Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) the Selling Companies Boards determine in good faith, after consultation with receiving advice from their outside counsel and a financial advisor of nationally recognized reputationcounsel, that such action is, or is reasonably likely failure to be, necessary in order do so would violate their fiduciary duties to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders Stockholders under applicable lawLaw, Juniper may, provided and (B) the Selling Companies Boards determine that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to is a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Superior Proposal.
(b) Except as set forth The Selling Companies shall immediately cease and cause to be terminated any such Contacts or negotiations with any Person relating to any such transaction or Acquisition Proposal. In addition to the foregoing, if (after this Agreement is executed and delivered by the Selling Companies and prior to the First Effective Time or the earlier termination of this Agreement in accordance with Section 6.5(c)13.1) the Selling Companies receive any offer or proposal (formal or informal, neither the Board of Directors of Juniper nor any committee thereof shall (ioral, written or otherwise) withdraw or modifyrelating to, or propose to withdraw any inquiry or modify, Juniper's Recommendation, (ii) approve or recommend or take no position contact from any Person with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a))Proposal, the Selling Companies shall immediately notify Parent thereof and provide Parent with the details thereof, including the identity of the Person or Persons making such offer, proposal, inquiry or contact and shall keep Parent fully informed on a current basis of the status and details of any such offer or proposal and of any modifications to the terms thereof.
(c) If, before Each of the date Selling Companies and Parent acknowledge that is 60 days after the date on which the execution of this Section 9.9 was a significant inducement for Parent to enter into this Agreement by and the absence of such a provision would have resulted in either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation a material reduction in the consideration to be paid to the Stockholders in the Mergers or (ii) subject the failure to the provisions of Section 8.1(c) hereof, cause Juniper induce Parent to terminate enter into this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
No Solicitations. (a) Juniper The Company agrees that neither it nor any of the Company Subsidiaries, nor any of their respective officers or directors shall, and that it shall direct and use its best efforts to cause its Subsidiaries and its and their respective officers, directors, the Company Subsidiaries' employees, agents and representatives and agents to(including any investment banker, immediately cease any activities, discussions attorney or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents accountant) not to, directly or indirectly, (i) solicit, initiate, encourage or otherwise facilitate any inquiries or the submission of any Acquisition Proposal (as defined herein) or (ii) participate inin any discussions or negotiations regarding, initiate or encourage (including by way of furnishing information)furnish to any Person any information with respect to, or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines nothing contained in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither 5.3 shall prohibit the Board of Directors of Juniper nor any committee thereof shall the Company (iand its authorized representatives) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, from: (iix) approve or recommend or take no position with respect furnishing information to, or propose to approve entering into discussions or recommend or take no position with respect tonegotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal from and after the date of this Agreement which did not result from a breach of this Section 5.3 if, and only to the extent that (A) the Board of Directors of the Company after consultation with and taking into account the advice of outside counsel, determines in good faith that in order for the Board of Directors of the Company to comply with its fiduciary duties to stockholders under applicable Law it is necessary to take such action, (B) prior to taking such action, the Company receives from such Person an executed confidentiality agreement having substantially the same terms as the Confidentiality Agreement and (C) the Company determines in good faith (after consultation with and taking into account the advice of its financial advisor and after receipt of, and taking into account the advice of, outside counsel) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, and the proposal would, if consummated, result in a more favorable transaction than the transactions contemplated by this Agreement, taking into account the long term prospects and interests of the Company and its stockholders (such more favorable Acquisition Proposal hereinafter referred to as a "Superior Proposal"); or (iiiy) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement complying with respect Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) IfProposal. The Company will immediately cease and cause to be terminated any existing activities, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation discussions or negotiations with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company any parties conducted heretofore with respect to any amendment of the foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or modification entities referred to this Agreement proposed by in the Company, (i) withdraw or modify its Recommendation or (ii) subject to first sentence hereof of the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but obligations undertaken in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" 5.3 and in the definition Confidentiality Agreement (as defined in Section 5.1). The Company agrees that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with any of its representatives indicating, in connection with such notice, the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally name of such Person and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such request proposals or Acquisition Proposal offers and the identity status of any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any of its Subsidiaries to return all written confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business that constitutes 15% or more of the Person making such request net revenues, net income or Acquisition Proposal. Juniper will immediately inform the assets of the Company or any of any material developments its significant Subsidiaries (as defined in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendmentsRule 1-02(w) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 of Regulation S-X promulgated under the Exchange Act Act) (a "Significant Subsidiary"), or from making 15% or more of any disclosure to Juniper's stockholders if, in the good faith judgment class of equity securities of the Special Committee Company or any of Juniperits Significant Subsidiaries, after consultation with any tender offer or exchange offer that if consummated would result in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Significant Subsidiaries, any reinsurance transaction entered into outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board the ordinary course of Directors nor business involving more than 15% of any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw Significant Subsidiary's assets or modifypolicyholder liabilities, or propose to withdraw any merger, consolidation, business combination, recapitalization, liquidation, dissolution or modifysimilar transaction involving the Company or any of its Significant Subsidiaries; provided that (w) the transactions contemplated by this Agreement, its position (x) any activities of Employees' Reinsurance Corporation taken with respect to its existing interest in the Merger Company in accordance with the terms of existing arrangements, (y) any discussions conducted by or this Agreement or approve or recommendon behalf of the Company and Employees' Reinsurance Corporation with a view to satisfying the condition contained in Section 6.3(l), or propose (z) any activities in connection with the proposed disposition of Integrated Process Technologies LLC, shall not be deemed to approve or recommend, be an Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (HSB Group Inc)
No Solicitations. Each of the Company and Eagles (as applicable, the “Party”) shall comply with the relevant provisions of this Section 6.5. The other party is referred to in this Section 6.5 as the “Other Party.”
(a) Juniper The Party shall, and shall cause its Subsidiaries subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper the Party and its Subsidiaries subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper The Party shall not, and shall cause its Subsidiaries subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before prior to the date that is 60 days after Party’s Shareholders Meeting, the date on which Board of Directors or Trustees of the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or it is reasonably likely necessary to be, necessary do so in order to comply with its fiduciary duties to the duties of Juniper's Special Committee to Juniper or Juniper's Party’s stockholders under applicable law, Juniper the Party may, provided that Juniper the Party has complied in all respects with its obligations under this Section 6.56.5(a), in response to an Acquisition a Superior Proposal received by Juniper the Party after the date hereof hereof, and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper the Party and its Subsidiaries subsidiaries to the person making such Acquisition Superior Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement no less restrictive on the other party than the applicable Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Acquisition Superior Proposal.
(b) Except as set forth in this Section 6.5(c)6.5, neither the Board of Directors or Trustees of Juniper the Party nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendationthe approval or recommendation by such Board of Directors or Trustees or such committee of the Offer, the Merger or this Agreement, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper the Party to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition a Superior Proposal as contemplated by Section 6.5(a)).
(c) If. Notwithstanding the foregoing, before if prior to the date that is 60 days after Party’s Shareholders Meeting the date on which Board of Directors or Trustees of the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action it is necessary required to do so in order to comply with its fiduciary duties to the duties stockholders of Juniper's Special Committee to Juniper or Juniper's stockholders the Party under applicable Lawlaw, Juniper's the Board of Directors of the Party may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper the Party has complied in all respects with its obligations under this Section 6.5 and has negotiated 6.5(b), in good faith with the Company with respect response to any amendment or modification to this Agreement proposed a Superior Proposal that was received by the CompanyParty after the date hereof, (ix) withdraw or modify its Recommendation approval or recommendation of the Offer, the Merger or this Agreement or (iiy) subject to the provisions of Section 8.1(c8.1(e) or (f), as applicable, hereof, cause Juniper to terminate this Agreement; , but in either each such case (x) only at a time that is after the fifth business day following the Other Party’s receipt by the Company's Special Committee of written notice advising the Company Other Party that Juniper the Board of Directors or Trustees of the Party has received a definitive Superior Proposal (after taking into account and considering any revised Acquisition Proposal made by Eagles in light of such Superior Proposal), specifying the material terms and containing conditions of such Superior Proposal and identifying the information about person making such Acquisition Proposal specified by Section 6.5(d) Superior Proposal, and (y) only if the Party is in compliance with this Section 6.5 and simultaneously with taking such action it also executes a definitive agreement to implement such Superior Proposal.
(c) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal, offer or expression of interest by any third party relating a merger, consolidation or other business combination involving the Party or any subsidiary of the Party, or any purchase of more than 15% of the consolidated assets of the Party (including the shares and assets of its subsidiaries) or more than 15% of the shares of the Party (other the pursuant to the exercise of Company Stock Options in accordance with their terms) or the issuance of any securities (or rights to acquire securities) of the Party or any subsidiary of the Party, or any similar transaction, or any agreement, arrangement or understanding requiring the Party to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. Any material modification of an Acquisition Proposal (including any modification of the economic terms) shall constitute a new Acquisition Proposal. For purposes of this Section 6.5(c)Agreement, "50%" shall be substituted a “Superior Proposal” means any bona fide Acquisition Proposal for "20%" a transaction in the definition which all of the term "Acquisition Proposal."
stock or assets of the Party are acquired by a third party, including by merger, consolidation or other business combination, on terms that the Board of Directors or Trustees of the Party determines in its good faith judgment (dafter consultation with a financial advisor of nationally recognized reputation) Juniper shall immediately advise to be more favorable to the Company orally Party’s stockholders, from a financial point of view, than the Merger and in writing the Repurchase Offer (taking into account all aspects of any request for information or of any Acquisition Proposalthe proposal, the material terms party making the proposal and conditions any changes to the Merger and Repurchase Offer proposed by the Other Party in response to the receipt by the Party of such request or Acquisition Proposal Superior Proposal) and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of which is not subject to any material developments in contingency, including any discussions or negotiations with respect tocontingency related to financing, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders ifunless, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shallor Trustees of the Party, except as specifically permitted such contingency is reasonably capable of being satisfied by Section 6.5(c)such third party, withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposaland that is otherwise reasonably capable of being consummated in a timely fashion.
Appears in 1 contract
No Solicitations. (a) Juniper shallDuring the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, and shall cause its Subsidiaries Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors, directors and employees, representatives and agents any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to no more than eight (8) Persons (each such Person, an Acquisition Proposal“Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and request subject also to execution of a customary confidentiality agreement, the return benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or destruction the making of all confidential information regarding Juniper and its Subsidiaries provided any proposal which constitutes, or may reasonably be expected to lead to, any such persons on or prior Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date of this Agreement is terminated pursuant to Section 7.1 hereof, the terms of any confidentiality agreements or otherwise. Juniper Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, participate inengage in discussions or negotiate, initiate or encourage take any other action intended or designed to facilitate (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, ) any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal (as hereinafter defined) or (ii) participate in enter into any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information agreement with respect to Juniper and its Subsidiaries to a Takeover Proposal. On the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such Acquisition Proposaldate. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.
(b) Notwithstanding anything to the contrary contained in Section 5.1.8(a), if at any time until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof (i) the Company receives an unsolicited Takeover Proposal from any Person (excluding any Person who is an Excluded Person) that, in the good faith judgment of the Company Board, is a Superior Proposal (as hereinafter defined) or could reasonably be expected in the good faith judgment of the Company Board to result in a Superior Proposal, (ii) the Company receives a Takeover Proposal from an Excluded Person that, in the good faith judgment of the Company Board, on its face is a Superior Proposal, or (iii) the Company Board determines in good faith that the failure to take some action could cause the Company Board not to satisfy the fiduciary duties of the Company Board as such duties would exist under applicable Law in the absence of this Section 5.1.8, then the Company may (A) furnish information to such Person and (B) negotiate or otherwise engage in substantive discussions with such Person; provided, that prior to furnishing any information to such Person with respect to the Company or its subsidiaries such Person shall sign a customary confidentiality agreement, the benefits of the terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent; provided, further, that any information furnished to such Person will be furnished to Parent as well. The Company must promptly (and in any event within 48 hours) notify Parent in writing if the Company, its subsidiaries or Representatives furnish information to any Person pursuant to this Section 5.1.8(b) (such notice to include the identity of such Persons) or intends to negotiate or otherwise engage in discussions permitted by this Section 5.1.8(b).
(c) Except as set forth in expressly permitted by this Section 6.5(c5.1.8(c), neither the Board of Directors of Juniper Company Board, nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, Juniper's Recommendationin a manner adverse to Parent or Subsidiary, the approval or recommendation by the Company Board or any such committee of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, to be considered at the Special Shareholders Meeting, (ii) approve or recommend or take no position with respect torecommend, or propose publicly to approve or recommend or take no position with respect torecommend, any Acquisition Proposal Takeover Proposal, or (iii) cause Juniper to enter into approve any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) IfTakeover Proposal. Notwithstanding the foregoing, before in the date event that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines Company Board in good faith, faith determines (after consultation with outside counsel and a an independent financial advisor of nationally recognized reputationand legal counsel) that a Takeover Proposal constitutes a Superior Proposal, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with then the Company with respect to any amendment or modification Board may (subject to this Agreement proposed by and the Company, (ifollowing sentences) withdraw or modify its Recommendation approval or recommendation of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, to be considered at the Special Shareholders Meeting. In such an event, the Company Board may (ii) subject to the provisions of Section 8.1(cthis sentence) hereofapprove or recommend such Superior Proposal or terminate this Agreement (and concurrently with such termination, if it so chooses, cause Juniper the Company to terminate this Agreement; enter into any Acquisition Agreement with respect to such Superior Proposal), but in either case only after providing Parent at least three (x3) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of days prior written notice advising it that the Company that Juniper Board has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of any Acquisition Superior Proposal, specifying the material terms and conditions of such request or Acquisition Superior Proposal and the identity of identifying the Person making such request or Acquisition Superior Proposal. Juniper will immediately inform Notwithstanding anything to the contrary set forth herein, (i) actions by the Company Board permitted under Section 5.1.8 shall not be deemed to be a withdrawal or modification of any material developments in any discussions the Company Board’s approval or negotiations with respect torecommendation of the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, and any material change (ii) a “stop-look-and-listen” communication of the nature contemplated in Rules 14d-9(f) under the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper Exchange Act with respect to an unsolicited tender offer or exchange offer that constitutes a Takeover Proposal, without more, shall not be deemed to be any such request withdrawal or Acquisition Proposal.
(e) modification if, within the period contemplated by Rule 14e-2 under the Exchange Act, the Board of Directors of the Company shall publicly confirm such approval and recommendation and recommend against the acceptance of such tender offer or exchange offer by the shareholders of the Company. Nothing contained in this Section 6.5 5.1.8 shall prohibit Juniper the Company from taking and disclosing to its stockholders shareholders a position contemplated by Rule 14e-2 or Rule 14d-9 14e-2(a) promulgated under the this Exchange Act or from making any required disclosure to Juniper's stockholders ifthe Company’s shareholders.
(d) For purposes of this Agreement a “Superior Proposal” shall mean a written proposal from a credible third party regarding the acquisition of substantially all the capital stock of the Company, a merger, tender or exchange offer, consolidation or other business combination with the Company or a sale of substantially all the assets of the Company, which proposal (i) is on terms that the Company Board determines in the its good faith judgment of the Special Committee of Juniper, after consultation with outside counselan independent financial adviser of nationally recognized reputation to be more favorable to the Company’s shareholders (in their capacities as shareholders) from a financial point of view than the Merger and the transactions contemplated by this Agreement, failure so taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to disclose would be inconsistent with applicable Lawamend the terms of this Agreement and the Merger); provided(ii) is reasonably capable of being completed on the terms proposed, however, that neither Juniper nor its Board of Directors nor taking into account all financial (including taking into account any committee thereof shall, except as specifically permitted financing required to consummate the transaction contemplated by Section 6.5(cthe Takeover Proposal), withdraw regulatory, legal and other aspects of such proposal, including the likelihood that such transaction will be consummated; and (iii) was not solicited by or modify, or propose to withdraw or modify, its position with respect to on behalf of the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition ProposalCompany in violation of Section 5.1.8(a).
Appears in 1 contract
No Solicitations. (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to From the date of this Agreement pursuant to until the terms earlier of the termination of this Agreement or the Effective Time, neither In Focus, Proxima nor any confidentiality agreements of their Subsidiaries shall, nor shall they authorize or otherwise. Juniper shall notpermit any officer, and shall cause its director, employee, investment banker, financial advisor, attorney, accountant or other advisor or representative retained by or acting for or on behalf of In Focus, Proxima or any of their Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) take any action to knowingly solicit, participate ininitiate, initiate continue, facilitate or encourage (including by way of furnishing or disclosing non-public information) any offer or proposal for a merger, consolidation or other business combination involving In Focus, Proxima or any of their Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, shares of any class of voting securities of In Focus, Proxima or any of their Subsidiaries (excluding, in the case of In Focus, proposals for the acquisition of shares constituting less than 20% of In Focus's outstanding voting securities) or a substantial portion of the assets of In Focus, Proxima or any of their Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing being referred to as an "Acquisition Proposal"), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate engage in any negotiations, discussions or negotiations communications regarding or disclose any information relating to In Focus, Proxima or any of their Subsidiaries or afford access to the properties, books or records of In Focus, Proxima or any of their Subsidiaries to any person, corporation, partnership or other entity or group (a "Potential Acquiror") that may be considering making, or has made, an Acquisition Proposal. The board of directors of Proxima (including by way of furnishing informationany committee thereof) regarding any Acquisition Proposal; provided, however, that if, at any time before shall not withdraw or modify in a manner adverse to In Focus the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel approval and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives recommendation of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to Exchange Offer or this Agreement. Neither the person making such Acquisition Proposal (board of directors of In Focus or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions Proxima shall approve or negotiations regarding such recommend any Acquisition Proposal.
(b) Except as set forth Notwithstanding the foregoing provisions of Section 4.2(a):
(i) Proxima may participate in Section 6.5(cdiscussions or negotiations with or furnish information to any third party which makes a written Acquisition Proposal which either (x) is not subject to a financing contingency and involves the purchase for cash of 100% of the Proxima Ordinary Shares at a price per share, which Proxima's board of directors determines, based on the advice of its financial advisor, is financially superior to the Exchange Offer or (y) provides for the acquisition of 100% of the Proxima Ordinary Shares, for consideration, not consisting entirely of cash, which Proxima's board of directors determines, based on the advice of its financial advisor, is financially superior to the Exchange Offer (in the case of either (x) or (y), neither the Board a "Superior Proposal"), and Proxima's board of Directors of Juniper nor directors, or any committee thereof may withdraw or modify in a manner adverse to In Focus, the approval or recommendation of the Exchange Offer, and may approve or recommend any such Superior Proposal, if, in the case of either (x) or (y), Proxima's board of directors determines (and is advised by its outside legal counsel) that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties. Proxima shall (i) withdraw notify In Focus promptly (and in any event within one business day) after receipt of any Acquisition Proposal or modifyany request for non-public information relating to Proxima or any of its Subsidiaries or for access to the properties, books or records of Proxima or any of its Subsidiaries by any person that is considering making, or propose to withdraw or modifyhas made, Juniper's Recommendationan Acquisition Proposal, (ii) notify Proxima promptly of any material change to any such Acquisition Proposal or request and (iii) upon reasonable request by In Focus, provide In Focus all material information about any such Acquisition Proposal, indication or request. Proxima will not, and will cause its affiliates not to, enter into an agreement with respect to a Superior Proposal unless In Focus has been advised in writing of the identity of the parties making the Superior Proposal and the material terms thereof at least two business days prior to the entering into of such agreement.
(ii) In Focus may participate in discussions or negotiations with or furnish information to any third party which makes a written Acquisition Proposal, and In Focus's board of directors, or any committee thereof may withdraw or modify in a manner adverse to Proxima, the approval or recommendation of the Exchange Offer, and may approve or recommend or any such Acquisition Proposal, if In Focus's board of directors determines (and is advised by its outside legal counsel) that the failure to take no position with respect to, or propose such action would reasonably be expected to approve or recommend or take no position with respect to, constitute a breach of its fiduciary duties. In Focus shall (i) notify Proxima promptly (and in any event within one business day) after receipt of any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for non-public information relating to In Focus or any of its Subsidiaries or for access to the properties, books or records of In Focus or any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of its Subsidiaries by any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, person that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modifyis considering making, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommendhas made, an Acquisition Proposal, and (ii) notify In Focus promptly of any material change to any such Acquisition Proposal or request.
Appears in 1 contract
Sources: Business Combination Agreement (In Focus Systems Inc)
No Solicitations. Subject to Section 10 hereof, each Principal Stockholder, in such Principal Stockholder’s capacity as a beneficial owner of Shares and New Shares (as defined in Section 7 hereof), agrees that such Principal Stockholder shall not, nor shall such Principal Stockholder permit any Person “controlling” it or under its “control” (as such term is used in the Exchange Act) to, (a) Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) indirectly solicit, participate ininitiate, initiate or encourage (including by way of furnishing information), propose or take any other action designed or reasonably likely to facilitate any Takeover Proposal, (b) enter into any agreement, arrangement or encourageunderstanding with respect to any Takeover Proposal (including any letter of intent or agreement in principle), (c) initiate or participate in any inquiries way in any negotiations or the making of discussions regarding a Takeover Proposal, (d) furnish or disclose to any proposal that constitutesThird Party any information with respect to, or may which would be reasonably be expected to lead to, any Acquisition Proposal Takeover Proposal, (e) solicit proxies or become a “participant” in or otherwise assist a “solicitation” (iias such terms are defined in Regulation 14A under the Exchange Act) participate that would reasonably be expected to compete with, or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in any discussions the abandonment or negotiations termination of, or failure to consummate, the Transaction (including by way of furnishing information) regarding any Acquisition Proposal; provided, however, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment Takeover Proposal or modification any action related thereto), (f) otherwise encourage or assist any Person in taking or planning any action (including any Takeover Proposal or any action related thereto) which would reasonably be expected to this Agreement proposed compete with or otherwise would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction, (g) directly or indirectly encourage, initiate or cooperate in a stockholders’ vote or action by written consent of the Company’s stockholders that would reasonably be expected to compete with or would reasonably be expected to interfere with, (i) withdraw delay, discourage, adversely affect or modify its Recommendation inhibit the timely consummation of, the Transaction or (ii) subject would reasonably be expected to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" result in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information abandonment or of any Acquisition Proposaltermination of, or failure to consummate, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms Transaction (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any Takeover Proposal or any action related thereto) or (h) become a member of a “group” (as such request or Acquisition Proposal.
(eterm is used in Section 13(d) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under of the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position Act) with respect to any voting securities of the Merger or this Agreement or approve or recommendCompany for any purpose that would reasonably be expected to compete with, or propose would reasonably be expected to approve interfere with, delay, discourage, adversely affect or recommendinhibit the timely consummation of the Transaction or would reasonably be expected to result in the abandonment or termination of, an Acquisition Proposalor failure to consummate the Transaction (including with respect to any Takeover Proposal or any action related thereto). Each of the Principal Stockholders shall be liable for any breach of this Section 5 by any Person controlling it or under its control.
Appears in 1 contract
No Solicitations. (a) Juniper shallFrom the date of this Agreement until the earlier of termination of this Agreement or the Closing, neither Seller nor Parent will take, nor permit the Company or any Affiliate of Seller or Parent (or authorize or permit any Representative retained by or acting for or on behalf of Seller, Parent, the Company or any such Affiliate) to take, directly or indirectly, any action to solicit, encourage, receive, negotiate, assist or otherwise facilitate (including by furnishing information with respect to the Company or permitting access to the Assets and Properties and Books and Records of the Company) any offer or inquiry or the making, submission or announcement of any proposal or offer that constitutes or is reasonably likely to lead to an Acquisition Proposal. If Seller, Parent, the Company, any such Affiliate or Representative receives from any Person any offer, inquiry or informational request referred to above, Seller and Parent will promptly advise such Person, by written notice, of the terms of this Section 4.04 and will promptly (and in any event within twenty-four (24) hours of such receipt), orally and in writing, advise Purchaser of such offer, inquiry or request and deliver a copy of such notice to Purchaser. Seller, Parent, the Company or any such Affiliate or Representative immediately shall cease and cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, to be terminated all existing discussions or negotiations with any parties that may be ongoing such Person conducted heretofore with respect to an Acquisition Proposal and will cease any action to knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal.
(b) Notwithstanding Section 4.04(a), from and request after the return date of this Agreement, Parent, directly or destruction indirectly, may take any of all confidential information regarding Juniper the actions referred to in Section 4.04(c), in response to an unsolicited and its Subsidiaries provided to any such persons on or prior to bona fide Acquisition Proposal in writing received after the date of this Agreement pursuant that did not result or arise from a breach of Section 4.04(a), if and only to the terms of any confidentiality agreements or otherwise. Juniper shall notextent that the Parent Board concludes in good faith, after consultation with, and shall cause based on the advice of, its Subsidiaries legal and its financial advisers, that such Acquisition Proposal constitutes a Superior Proposal and that the failure to take such action would be in breach of the fiduciary duties of Parent’s directors or would violate their respective officersobligations to the extent applicable under the City Code on Takeovers and Mergers, directorsthe Companies ▇▇▇ ▇▇▇▇, trusteesthe Companies ▇▇▇ ▇▇▇▇, employeesthe rules and regulations of the UKLA or any other applicable Laws or regulations or rules of a Governmental or Regulatory Authority.
(c) Upon the terms and subject to the conditions set forth in Section 4.04(b), representatives and agents not to, directly or indirectly, Parent may (i) solicitfurnish information with respect to the Company to a Person (and the Representatives of such Person) making an Acquisition Proposal (provided, participate in, initiate or encourage (including by way that such Person has entered into a confidentiality agreement with the Company substantially similar to and no less favorable to the Company than the confidentiality provisions of furnishing informationSection 13.05), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or and (ii) participate engage in any discussions or negotiations (including by way of furnishing information) with such Person and its Representatives regarding any such Acquisition Proposal; provided, however, that if, at Parent and Seller shall furnish or make available to Purchaser any time before non-public information concerning the date Company that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, furnished or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries made available to the person Person (and the Representatives of such Person) making such Acquisition Proposal (that has not previously been furnished or its designated representatives) pursuant made available to a confidentiality and standstill agreement and (y) participate in discussions Purchaser prior to or negotiations regarding at the time it is furnished or made available to such Acquisition Proposalother Person.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect to, any Acquisition Proposal or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal (other than a confidentiality and standstill agreement with respect to an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper Parent and Seller shall immediately advise ensure that the Representatives of Parent, Seller, the Company orally and in writing of any request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity their respective Affiliates are aware of the Person making such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments restrictions described in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposal.
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.this
Appears in 1 contract
Sources: Stock Purchase Agreement (Danka Business Systems PLC)
No Solicitations. From May 12, 1998 until the Effective Date or, if earlier, the date this Agreement is terminated or abandoned as provided in Section 10.1, Parent shall not (anor did it) Juniper shalldirectly or indirectly (i) solicit or initiate any discussion with or (ii) enter into negotiations or agreements with, or furnish any information that is not publicly available to, any corporation, partnership, person or other entity or group (other than the Company, an Affiliate of the Company or their authorized representatives) concerning any Acquisition Proposal involving Parent, and shall cause Parent will instruct its Subsidiaries Representatives not to take any action contrary to the foregoing provisions of this sentence; provided, however, that Parent and its and their respective officersRepresentatives shall not be prohibited from taking any action described in clause (ii) above to the extent such action is taken by, directorsor upon the authority of, employeesthe Board of Directors of Parent in the exercise of the Board's good faith judgment as to its fiduciary duties to the shareholders of the Company, representatives and agents towhich judgment is based upon the written advice of independent, immediately cease outside legal counsel that a failure of the Board of Directors of Parent to take such action would be likely to constitute a breach of its fiduciary duties to such shareholders. Parent will notify the Company promptly in writing if Parent becomes aware that any activitiesinquiries or proposals are received by, any information is requested from or any negotiations or discussions or negotiations with any parties that may are sought to be ongoing initiated with, Parent with respect to an Acquisition Proposal. Each time, and request the return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and shall cause its Subsidiaries and its and their respective officers, directors, trustees, employees, representatives and agents not to, directly or indirectly, (i) solicit, participate in, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, howeverif any, that if, at any time before the date that is 60 days after the date on which the execution of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or is reasonably likely to be, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any such information has been or contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 6.5(c), neither the Board of Directors of Juniper nor Parent determines, upon written advice of such legal counsel and in the exercise of its good faith judgment as to its fiduciary duties to shareholders, that it must enter into negotiations with or furnish any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, Juniper's Recommendation, (ii) approve or recommend or take no position with respect to, or propose to approve or recommend or take no position with respect information that is not publicly available to, any Acquisition Proposal corporation, partnership, person or (iii) cause Juniper to enter into any agreement related to any Acquisition Proposal other entity or group (other than a confidentiality and standstill agreement with respect to Parent, an Acquisition Proposal as contemplated by Section 6.5(a)).
(c) If, before the date that is 60 days after the date on which the execution Affiliate of this Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable Law, Juniper's Board of Directors may, in accordance with a recommendation by Juniper's Special Committee to Juniper's Board of Directors to take such action and provided that Juniper has complied in all respects with its obligations under this Section 6.5 and has negotiated in good faith with the Company with respect to any amendment or modification to this Agreement proposed by the Company, (itheir Representatives) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 8.1(c) hereof, cause Juniper to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by the Company's Special Committee of written notice advising the Company that Juniper has received a definitive Acquisition Proposal and containing the information about such Acquisition Proposal specified by Section 6.5(d) and (y) only if simultaneously with taking such action it also executes a definitive agreement to implement such Acquisition Proposal. For purposes of this Section 6.5(c), "50%" shall be substituted for "20%" in the definition of the term "Acquisition Proposal."
(d) Juniper shall immediately advise the Company orally and in writing of any request for information or of concerning any Acquisition Proposal, Parent will give the material terms and conditions Company prompt notice of such request or Acquisition Proposal and the identity determination (which shall include a copy of the Person making written advice of such request or Acquisition Proposal. Juniper will immediately inform the Company of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including amendments or proposed amendments) of, any such request or Acquisition Proposal. Juniper will promptly provide the Company with any agreements entered into by Juniper with respect to any such request or Acquisition Proposallegal counsel).
(e) Nothing contained in this Section 6.5 shall prohibit Juniper from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to Juniper's stockholders if, in the good faith judgment of the Special Committee of Juniper, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither Juniper nor its Board of Directors nor any committee thereof shall, except as specifically permitted by Section 6.5(c), withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Metro Tel Corp)