Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly: (1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal; (2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions); (3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal; (4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (5) enter into any Alternative Acquisition Agreement; or (6) authorize, resolve, agree or commit to do any of the foregoing. (b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law. (c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 6 contracts
Sources: Support Agreement (Vacasa, Inc.), Support Agreement (Vacasa, Inc.), Support Agreement (Vacasa, Inc.)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, In all cases subject to Section 84.6, each of the Stockholders hereby agrees that it Stockholder shall not, and it shall instruct and use its his or her reasonable best efforts to direct its cause his or her Affiliates and each of their respective Representatives not to, directly or indirectly:
, (1a) solicit, initiate, solicitseek, propose encourage (including by providing information or knowingly encourage assistance), facilitate or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, induce any Acquisition Proposal;
, (2b) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide furnish or cause to be furnished to any non-public Person any information or data to any Person or Group relating toin connection with, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, propertiespersonnel, assets, books, records Assets or other non-public informationBooks and Records of the Seller and its Subsidiaries in connection with, or take any other action to solicit, facilitate or induce the making of, any personnelinquiry, of the Company and its Subsidiaries, in any such case with the intent to induceoffer or proposal that constitutes, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
Proposal (5except to notify a Person of the existence of this Section 4.4 or of Section 5.08 of the Merger Agreement), (c) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolveapprove, agree to, accept, endorse or commit recommend any Acquisition Proposal, (d) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined under the Exchange Act) with respect to an Acquisition Proposal or otherwise encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (e) initiate a stockholders’ vote or action by consent of Seller’s stockholders with respect to an Acquisition Proposal, (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of Seller that takes any action in support of an Acquisition Proposal, (g) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any definitive agreement contemplating or otherwise relating to any Acquisition Transaction, or (h) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding Without limiting the foregoing, it is agreed that any violation of the Stockholders restrictions set forth in this Section 4.4 by any Affiliate or representative, agent, or attorney of the Stockholder shall not be required to notify Parent constitute a breach of any discussions or negotiations to this Section 4.4 by the extent the Company has notified Parent thereofStockholder.
Appears in 5 contracts
Sources: Agreement and Plan of Merger (FB Financial Corp), Agreement and Plan of Merger (FB Financial Corp), Voting Agreement (Southern States Bancshares, Inc.)
Acquisition Proposals. Except as set forth in the Wellsford Disclosure Letter, prior to the Effective Time, Wellsford agrees that:
(a) From and after the date hereof until the earlier neither it nor any of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective TimeWellsford Subsidiaries shall initiate, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not tosolicit or encourage, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making or implementation of any proposal or offer that constitutes(including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation, sale of assets or similar transaction involving all or any significant portion of the assets or any equity securities of, Wellsford or any of the Wellsford Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning or provide any confidential information or data to, or would reasonably be expected to lead tohave any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal;
(2b) it will use its best efforts not to permit any of its officers, trustees, employees, agents or financial advisors to engage in, continue or otherwise participate in any of the activities described in Section 4.1(a);
(c) it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regardingwith any parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to in Section 4.1(b) of the obligations undertaken in this Section 4.1; and
(d) it will notify EQR immediately if Wellsford receives any such inquiries or proposals, or provide any non-public requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with it; provided, however, that nothing contained in this Section 4.1 shall prohibit the Board of Trustees of Wellsford from (i) furnishing information to or data entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal, if, and only to the extent that (A) the Board of Trustees of Wellsford determines in good faith that such action is required for the Board of Trustees to comply with its duties to shareholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Wellsford provides written notice to EQR to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any Person confidentiality agreement with such person or Group relating toentity (which Wellsford determined in good faith was required to be executed in order for the Board of Trustees to comply with its duties to shareholders imposed by law), Wellsford keeps EQR informed of the status (not the terms) of any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 4.1 shall (x) permit Wellsford to terminate this Agreement (except as specifically provided in Article 7 hereof), (y) permit Wellsford to enter into an agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, Wellsford shall not enter into an agreement with any Person that provides for, or in any inquiryway facilitates, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state a confidentiality agreement in customary form executed as provided above)) or (z) affect any other obligation of Wellsford under this Agreement; provided, however, that the terms Board of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any Trustees of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Wellsford may approve and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writingconnection therewith, withdraw or modify its approval or recommendation of this Agreement and the Merger. As used herein, "Superior Acquisition Proposal" means a copy thereof and thereafter shall keep Parent informed, on bona fide Acquisition Proposal made by a prompt basis (and, in any event, within forty-eight (48) hours), third party which a majority of the status members of the Board of Trustees of Wellsford determines in good faith to be more favorable to Wellsford's shareholders from a financial point of view than the Merger and terms which the Board of any such Acquisition Proposal and the status Trustees of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent Wellsford determines is reasonably capable of any discussions or negotiations to the extent the Company has notified Parent thereofbeing consummated.
Appears in 4 contracts
Sources: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust)
Acquisition Proposals. During the period from the date hereof and continuing through the Effective Time or the earlier termination of this Agreement in accordance with its terms, Seller agrees that:
(a) From and after the date hereof until the earlier neither it nor any of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective TimeSeller Subsidiaries shall initiate, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not tosolicit or knowingly encourage, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making or implementation of any proposal or offer that constitutes(including, or would reasonably be expected to lead towithout limitation, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead its stockholders) with respect to an Acquisition Proposal (other than to state that a merger, acquisition, tender offer, exchange offer, consolidation, sale of assets or similar transaction involving all or any significant portion of the terms of this Section 4.1 prohibit such discussions);
(3) furnish to assets or any Person (other than Parent equity securities of, Seller or any of its AffiliatesSubsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any non-public negotiations concerning or provide any confidential information or data to, or have any discussions with, any Person relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public informationan Acquisition Proposal, or otherwise facilitate any effort or attempt to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, make or that could reasonably be expected to result in, the making, submission or announcement of, implement an Acquisition Proposal;
(4b) approveit shall direct and use its best efforts to cause its officers, endorse directors, employees, agents or recommend any proposal that constitutes or would reasonably be expected financial advisors not to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do engage in any of the foregoing.
(b) Notwithstanding anything to the contrary activities described in Section 4.1(a);
(c) it will immediately cease and cause to be terminated any existing activities, the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written with any parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to in Section 4.1(b) of the obligations undertaken in this Section 4.1; and
(d) it will notify Buyer promptly if Seller receives any such inquiries or proposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with it; provided, however, that nothing contained in this Agreement shall prohibit the Board of Directors of Seller (and the officers, directors, employees, agents and financial advisors of Seller acting at the direction of the Board of Directors) from prior to the Seller Shareholders Meeting (as defined below) furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited Acquisition Proposal received after the date of this AgreementProposal, if if, and only to the extent that (A) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined Directors of Seller determines in good faith based on that such action is required for the Board of Directors to comply with its duties to stockholders imposed by law and such proposal is a Superior Acquisition Proposal (as defined below), (B) prior to furnishing such information then available to, or entering into discussions or negotiations with, such Person, Seller provides written notice to Buyer to the effect that it is furnishing information to, or entering into discussions with, such Person and (C) subject to any confidentiality agreement with such Person, Seller keeps Buyer informed of the status (not the terms) of any such discussions or negotiations (Seller agreeing that it will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits Seller from providing such information to Buyer); and (ii) to the extent applicable, taking and disclosing to the Seller stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; provided, however, that the Board of Directors of Seller may not approve or recommend an Acquisition Proposal, or withdraw or modify its approval or recommendation of this Agreement and the Merger, unless such Acquisition Proposal is a Superior Acquisition Proposal. Nothing in this Section 4.1 shall (x) permit Seller to terminate this Agreement (except as specifically provided in Article 7 hereof), (y) permit Seller to enter into an agreement with respect to an Acquisition Proposal during the term of this Agreement (other than a confidentiality agreement in customary form executed as provided above) or (z) affect any other obligation of Seller under this Agreement; provided, however, that the Board of Directors of Seller may approve and recommend a Superior Acquisition Proposal and, in connection therewith, withdraw or modify its approval or recommendation of this Agreement and the Merger. As used herein, "Superior Acquisition Proposal" means a bona fide Acquisition Proposal made by a third party which the Board of Directors of Seller (or a duly constituted committee thereof charged with considering Acquisition Proposals) determines in good faith (after consultation with its financial advisor advisor) to be more favorable to Seller's stockholders than the Merger and outside counsel either constitutes a Superior Proposal which the Board of Directors of Seller (or any such committee) determines is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawcapable of being consummated.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 3 contracts
Sources: Merger Agreement (Berkshire Companies Limited Partnership), Merger Agreement (Blackstone Real Estate Acquisitions Iii LLC), Merger Agreement (Goldman Sachs Group Lp)
Acquisition Proposals. (a) From [Reserved.]
(b) Subject to Section 6.03(b) and after Section 6.03(c) and except as expressly permitted by this Section 6.02, from the date hereof of this Agreement until the earlier to occur of the Effective Time or the termination of the Merger this Agreement pursuant to Article VIII thereof and Section 8.01, beginning on the date hereof:
(i) the Company Merger Effective Time, subject to Section 8, shall not and shall cause each of its Subsidiaries not to, nor shall the Stockholders hereby agrees that it shall not, Company authorize or permit any of its Representatives or any of its Subsidiaries’ Representatives to and it shall instruct and use its reasonable best efforts to direct its Representatives and its Subsidiaries’ Representatives not to, directly or indirectly:
indirectly (1other than with respect to Parent and Merger Sub), (A) solicit, initiate, solicit, propose or induce the making, submission or announcement of, knowingly facilitate or knowingly encourage any inquiries, proposals or knowingly facilitate any inquiries or the making of any proposal or offer offers that constitutesconstitute, or that would reasonably be expected to lead to, any an Acquisition Proposal;
, (2B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide with any non-public information or data to any Person or Group relating to, any Third Party regarding an Acquisition Proposal (or any inquiryinquiries, proposal proposals or offer offers that would reasonably be expected to lead to an Acquisition Proposal Proposal), (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3C) furnish to any Person (other than Parent Third Party any information or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford provide to any such Person Third Party access to the businessbusinesses, properties, assets, books, records or other non-public information, or to any personnel, personnel of the Company and or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating any such case with the intent to induceinquiries, proposals or offers that constitute, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
, (5D) approve, endorse or recommend an Acquisition Proposal or (E) approve, recommend or enter into, or propose to approve, recommend or enter into any Alternative letter of intent, memorandum of understanding, merger agreement, acquisition agreement, or other similar Contract (other than an Acceptable Confidentiality Agreement, or such other permitted confidentiality agreement pursuant to this Section 6.02) with respect to an Acquisition AgreementProposal; orand
(6ii) authorizethe Company shall, resolveand shall cause its Subsidiaries to, agree and shall direct the Company’s and its Subsidiaries’ Representatives to, (A) immediately after the execution and delivery of this Agreement cease and terminate any existing discussions, communications or commit negotiations with any Third Party, theretofore conducted by the Company, its Subsidiaries or their respective Representatives with respect to do an Acquisition Proposal and terminate all access of any Third Party to any physical or electronic data room (or other diligence access) maintained by the Company, and (B) promptly following the date hereof, the Company shall request that all non-public information previously provided by or on behalf of the Company or any of its Subsidiaries to any such Third Party be returned or destroyed in accordance with the foregoingapplicable confidentiality or similar agreement entered into with such Third Party prior to the date hereof.
(bc) Notwithstanding anything to the contrary contained in Section 4.1(a)this Agreement, if, at any time on or after the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding date hereof, but prior to obtaining the Stockholder Approval, (i) the Company receives a bona fide written Acquisition Proposal received after the date from a Third Party, (ii) such Acquisition Proposal did not result from a material breach of this Agreement, if Section 6.02 or Section 6.03 and only to the extent that (iii) the Company Board (acting upon on the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and faith, after consultation with its financial advisor a Company Financial Advisor (and, in the case of the Special Committee, a Special Committee Financial Advisor) and outside counsel either constitutes a Superior legal counsel, that such Acquisition Proposal constitutes, or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to lead to, a Superior Proposal and that the failure to take the actions contemplated by the following clauses (A) or (B) would be inconsistent with the Company Board’s fiduciary duties under applicable Law, then the Company or the Special Committee, directly or indirectly through one or more of their Representatives, may, subject to applicable Law, (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal and afford such Third Party access to the businesses, properties, assets and personnel of the Company and its Subsidiaries and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations (including by entering into a customary confidentiality agreement with such Third Party for the purpose of receiving non-public information relating to such Third Party); provided, however, that the Company (1) will not, and will cause its Subsidiaries not to and shall not permit its or their Representatives to and shall direct its and their Representatives not to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such Third Party, which was not previously provided to Parent, prior to or substantially concurrently with the time it is provided to such Third Party. Notwithstanding anything to the contrary contained in this Agreement, the Company or the Special Committee, directly or indirectly through one or more of their Representatives, may (x) following the receipt of an Acquisition Proposal from a Third Party, contact such Third Party in order to clarify and understand the terms and conditions of an Acquisition Proposal made by such Third Party in order to permit the Company Board (or any committee thereof) to determine whether such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (y) direct any Persons to this Agreement, including the specific provisions of this Section 6.02.
(d) From and after the date of this Agreement, the Company shall as promptly as practicable (and in any event within 24 hours) notify Parent of the Company’s receipt of any Acquisition Proposal, which notification shall include a copy of the applicable written Acquisition Proposal (or, if oral, a reasonably detailed written description of the material terms and conditions of such Acquisition Proposal) and the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a prompt basis (and in any event within 24 hours) of the status of any material developments regarding any such Acquisition Proposal (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) promptly after receipt thereof. For the avoidance of doubt, all information provided to Parent pursuant to this Section 6.02 will be subject to the terms of the Confidentiality Agreement.
(e) The Company and the Company Board (or any committee thereof) shall not (i) grant waivers of, release any Third Party from, terminate or modify, and shall be required to enforce, any provision of any confidentiality, standstill or similar agreement (or any confidentiality or standstill provision of any other Contract) to which any of the Company or any Subsidiary of the Company is a party that has the effect of prohibiting or purporting to prohibit the counterparty thereto from making an unsolicited Acquisition Proposal or (ii) take any action to exempt any Third Party from or render inapplicable Section 203 of the DGCL or other anti-takeover Applicable Law, except, in each case of clauses (i) and (ii) if the Company Board (or any committee thereof) determines in good faith (after consultation with a Company Financial Advisor or a Special Committee Financial Advisor and outside legal counsel), that the failure to do so would be inconsistent with its fiduciary duties under applicable Applicable Law, then the Company may grant a limited waiver of any such standstill or similar provision or take any such action to render inapplicable any anti-takeover Applicable Law solely to the extent necessary to permit such Third Party to make a non-public Acquisition Proposal to the Company Board or to engage in discussions relating to an Acquisition Proposal with an “interested stockholder” of the Company as such term is used in Section 203 of the DGCL and, to the extent permitted by the other subsections of this Section 6.02 and Section 6.03, thereafter negotiate and enter into any transaction in connection therewith.
(cf) From the date hereof until the earlier The Company agrees that any action or failure to take any action by any director, officer or other Representative of the termination Company or any of its Subsidiaries which would constitute a breach of this Section 6.02 if taken or not taken by the Company or its Subsidiaries will be deemed to be a breach of this Section 6.02 by the Company. The Company will not authorize, direct or knowingly permit any director, officer or other Representative of the Merger Agreement pursuant Company or its Subsidiaries to Article VIII thereof breach this Section 6.02, and upon becoming aware of any breach or threatened breach of this Section 6.02 by a director, officer or Representative of the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in or its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoingSubsidiaries, the Stockholders Company shall not be required use its reasonable best efforts to notify Parent of any discussions stop such breach or negotiations to the extent the Company has notified Parent thereofthreatened breach.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall notNo Southwest Entity shall, and it shall instruct and use its reasonable best efforts to direct cause its Representatives not to, directly or indirectly:
, (1i) solicit, initiate, solicitencourage (including by providing information or assistance), propose facilitate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, induce any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information furnish or data cause to be furnished to any Person or Group relating “Group” (as such term is defined in Section 13(d) under the Exchange Act) any nonpublic information with respect to, or take any Acquisition Proposal other action to facilitate any inquiries or the making of any inquiry, offer or proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public informationconstitutes, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolveapprove, agree to, accept, endorse or commit recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to do approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the foregoingrestrictions set forth in this Section 7.2 by any Subsidiary or Representative of Southwest shall constitute a breach of this Section 7.2 by Southwest.
(b) Notwithstanding anything to the contrary in Section 4.1(a7.2(a), the Stockholders and their if Southwest or any of its Representatives may engage in or otherwise participate in discussions or negotiations regarding a receives an unsolicited, bona fide written Acquisition Proposal received by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to Southwest’s Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Southwest and its Representatives may, prior to (but not after) Southwest’s Shareholders’ Meeting, take the following actions if the board of directors of Southwest (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with Southwest’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the date failure to take such actions would cause it to violate its fiduciary duties under applicable Law, and (ii) obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of this Agreementthe Confidentiality Agreement is in each provision with respect to ▇▇▇▇▇▇▇ (and such confidentiality agreement shall not provide such Person or “Group” with any exclusive right to negotiate with Southwest): (A) furnish information to (but only if Southwest shall have provided such information to ▇▇▇▇▇▇▇ prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or “Group” with respect to such bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Southwest shall advise ▇▇▇▇▇▇▇ in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and Southwest shall as promptly as practicable provide to ▇▇▇▇▇▇▇ (i) a copy of such Acquisition Proposal, request or inquiry, if and only in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Southwest shall provide ▇▇▇▇▇▇▇ as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep ▇▇▇▇▇▇▇ informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the extent that contrary, at any time prior to Southwest’s Shareholders’ Meeting, if Southwest has received a Superior Proposal (after giving effect to the Company Board terms of any revised offer by ▇▇▇▇▇▇▇ pursuant to this Section 7.2(d)), the board of directors of Southwest may, in connection with the Superior Proposal, make a Change in the Southwest Recommendation (acting upon including, for the recommendation avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the Special Committee) or the Special Committee board of directors of Southwest has determined in good faith based on the information then available and faith, after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Southwest may not take the actions set forth in this Section 7.2(d) unless:
(i) Southwest has complied in all material respects with this Section 7.2;
(ii) Southwest has provided prior written notice to ▇▇▇▇▇▇▇ at least five Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise ▇▇▇▇▇▇▇ that the board of directors of Southwest has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Southwest has and has caused its financial advisors and outside legal counsel to, negotiate with ▇▇▇▇▇▇▇ in good faith (to the extent ▇▇▇▇▇▇▇ desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Southwest) a Superior Proposal; and
(iv) the board of directors of Southwest has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by ▇▇▇▇▇▇▇, if any, that such Superior Proposal remains a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Southwest shall deliver a new written notice to ▇▇▇▇▇▇▇ and shall comply with the requirements of this Section 7.2 with respect to such new written notice, including commencement of a new Notice Period. Notwithstanding any Change in the Southwest Recommendation, this Agreement shall be submitted to the shareholders of Southwest at Southwest’s Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Southwest of such obligation; provided, that if the board of directors of Southwest shall have effected a Change in the Southwest Recommendation, then the board of directors of Southwest, in connection with the submission of this Agreement to the shareholders of Southwest may submit this Agreement without recommendation (although the resolution adopting this Agreement as of the date hereof may not be rescinded), in which event the board of directors of Southwest may communicate the basis for its lack of a recommendation to the shareholders of Southwest in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Southwest shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger or enter into any Acquisition Agreement with respect to any Acquisition Transaction other than the Merger.
(ce) From the date hereof until the earlier of the termination of the Merger Agreement pursuant Southwest and Southwest Subsidiaries shall, and Southwest shall direct its Representatives to, (i) immediately cease and cause to Article VIII thereof be terminated any and the Company Merger Effective Timeall existing activities, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than ▇▇▇▇▇▇▇ and its Representatives) that has made or Group indicated an intention to make an Acquisition Proposal and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(f) Nothing contained in this Agreement shall prevent Southwest or its board of directors from issuing a “stop, look and listen” communication pursuant to Section 4.1(bRule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and shall provide, in connection Rule 14e-2 under the Exchange Act with such notice, respect to an Acquisition Proposal or from making any disclosure to the shareholders of Southwest if the board of directors of Southwest (xafter consultation with outside legal counsel) the identity concludes that its failure to do so would be a violation of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms directors’ fiduciary duties under applicable Law. Issuance of any such Acquisition Proposal and communication shall be deemed a Change in the status Southwest Recommendation unless the communication includes a reaffirmation of any such or discussions or negotiations. Notwithstanding the foregoing, Southwest Recommendation in favor of approval by the Stockholders shall not be required to notify Parent shareholders of any discussions or negotiations to the extent the Company has notified Parent thereofSouthwest of this Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Simmons First National Corp), Merger Agreement (Southwest Bancorp Inc), Merger Agreement (Simmons First National Corp)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective TimeMercer shall not authorize or permit any officer, subject to Section 8director or employee of, each of the Stockholders hereby agrees that it shall notor any investment banker, and it shall instruct and use its reasonable best efforts to direct its Representatives not attorney, accountant or other advisor or representative of, Mercer or any Mercer Subsidiary to, directly or indirectly:
, (1i) initiate, solicit, propose initiate or knowingly encourage the submission of any Acquisition Proposal, as defined below, (ii) participate in any discussions or knowingly negotiations regarding, or furnish to any Person any information with respect to, or agree to or endorse, or take any other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal or offer that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;
, (2iii) engage in, continue withdraw or otherwise participate in any discussions or negotiations regardingmodify, or provide propose to withdraw or modify, in a manner adverse to Buyer, the Mercer Recommendation, (iv) approve or recommend, or propose to approve or recommend, any non-public information Acquisition Proposal, or data (v) enter into any letter of intent, agreement in principal or Contract providing for, relating to any Person or Group relating toin connection with, any Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal; provided, however, that prior to the Mercer Shareholder Meeting, nothing contained in this Agreement shall prevent Mercer or its Board of Directors from taking any of the actions described in clauses (ii) through (v) above in response to any unsolicited bona fide written Acquisition Proposal by a Third Party, if, only to the extent that and only so long as, (other A) such Acquisition Proposal would, if consummated, result in a Superior Proposal, as defined below, and, in the reasonable good faith judgment of ▇▇▇▇▇▇’▇ Board of Directors, following consultation with its independent financial advisors, the Third Party making such Superior Proposal has the financial means to conclude such transaction, (B) the failure to take such action would in the reasonable good faith judgment of ▇▇▇▇▇▇’▇ Board of Directors, after consultation with ▇▇▇▇▇▇’▇ outside corporate counsel, violate the fiduciary duties of ▇▇▇▇▇▇’▇ Board of Directors under Applicable Law, (C) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such Third Party, ▇▇▇▇▇▇’▇ Board of Directors receives from such Third Party an executed confidentiality agreement with provisions not less favorable to Mercer than those contained in the Confidentiality Agreement, and (D) Mercer shall have provided Buyer all materials and information required under Section 5.4(c) to state be delivered by Mercer to Buyer and shall have fully complied with this Section 5.4; provided, further, that immediately after the execution and delivery of this Agreement, Mercer will cease and terminate any existing activities, discussions or negotiations with any Third Parties conducted heretofore with respect to any possible Acquisition Proposal. Mercer agrees that following its receipt of a Superior Proposal and its full compliance with Section 5.4(c), Buyer shall have a reasonable opportunity, but in no event more than five (5) days, to propose changes to this Agreement in response to such proposal.
(b) Mercer shall promptly cease and terminate all activities, discussions and negotiations with any Third Party permitted pursuant to Section 5.4(a) and promptly reaffirm the Mercer Recommendation if at any time any of the conditions set forth in clauses (A) and (B) of Section 5.4(a) shall fail to be satisfied, including if, as a result of any changes to the terms of this Section 4.1 prohibit Agreement proposed by Buyer, such discussions);Acquisition Proposal would thereafter fail to result in a Superior Proposal.
(3c) furnish Notwithstanding anything in this Agreement to the contrary, Mercer shall promptly, and in no event later than twenty-four (24) hours after it receives any Person (other than Parent Acquisition Proposal, or any of its Affiliates) any non-public written request for information relating to the Company regarding Mercer or any of its Subsidiaries Mercer Subsidiary by a Third Party that has made or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, is considering making an Acquisition Proposal;
(4) approve, endorse Proposal or recommend any inquiry or proposal that constitutes or would which could reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into Proposal or any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding indication that a bona fide written Third Party is considering making an Acquisition Proposal received after the date of this Agreement, if and only to the extent or any proposal that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would could reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier lead to an Acquisition Proposal, advise Buyer orally and in writing of the termination receipt of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timesuch Acquisition Proposal, subject to Section 8request, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (andinquiry or indication, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) including providing the identity of the Person Third Party making or Group making submitting such proposal Acquisition Proposal or request, and (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that i) if it is in effect writing, a copy of the date hereof) (y) a summary of such Acquisition Proposal and any related draft agreements and other written material setting forth the material terms and conditions of any such Acquisition Proposal andProposal, and (ii) if in writingoral, a copy thereof and thereafter shall reasonably detailed written summary thereof. Mercer will keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), Buyer fully informed of the status and details of any such Acquisition Proposal, request, inquiry or indication or with respect to any change to the material terms of any such Acquisition Proposal, request, inquiry or indication. Mercer agrees that, subject to restrictions under Applicable Laws, it shall, prior to or concurrent with the time it is provided to any Third Parties, provide to Buyer any non-public information concerning Mercer and any Mercer Subsidiary that Mercer provides to any Third Party in connection with any Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall which was not be required previously provided to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofBuyer.
Appears in 2 contracts
Sources: Merger Agreement (United Fire & Casualty Co), Merger Agreement (Mercer Insurance Group Inc)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct cause its Representatives not to, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public nonpublic information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;; or
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, resolve or agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a):
(1) From the date hereof until the No-Shop Period Start Date (or with respect to an Excluded Party, the Cut-Off Time), the Stockholders may, at the Company’s request and with substantially concurrent written notice to Parent (which notice shall include the identity of the Third Person referenced in this Section 4.1(b)(1)), engage in discussions with a Third Person who has submitted an Acquisition Proposal solely for the purpose of confirming that the Stockholders are willing to enter into an agreement to vote in favor of such Acquisition Proposal if the Company Board (acting on the recommendation of the Special Committee) or the Special Committee, as applicable, were to subsequently determine that such Acquisition Proposal constitutes a Superior Proposal in accordance with Section 6.2 of the Merger Agreement.
(2) The Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (Board, acting upon the recommendation of the Special Committee) , or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within fortytwenty-eight (48) four hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, the material terms and conditions of any proposal, indication of interest (x) including, for the avoidance of doubt, the form and amount of consideration and proposed financing arrangements), or offer (including the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms proposal, indication of any confidentiality agreement with such Person interest or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal offer and, if in writingapplicable, a copy thereof copies of any written proposal, indication of interest or offer, including proposed agreements or commitment letters) that is the subject of such discussions or negotiations, and thereafter shall keep Parent informed, on a reasonably prompt basis (and, in any event, within fortytwenty-eight (48) four hours), of any material changes to the status and terms of any such Acquisition Proposal proposal, indication of interest or offer (including any amendments thereto) and any material changes to the status and terms of any such proposal, indication of interest or discussions or negotiationsoffer. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 2 contracts
Sources: Support Agreement (Focus Financial Partners Inc.), Merger Agreement (Focus Financial Partners Inc.)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct cause the officers, directors, employees, agents and use representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent, representative or Affiliate (collectively as to each Party, the “Representatives”) of the Company or any of its reasonable best efforts Subsidiaries not to direct its Representatives not to, directly or indirectly:
(1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6iii) authorize, resolve, agree otherwise knowingly facilitate any effort or commit attempt to do any of the foregoingmake an Acquisition Proposal.
(b) Notwithstanding anything in Section 6.06(a) to the contrary in Section 4.1(a)contrary, prior to the time, but not after, the Stockholders and their Representatives Requisite Stockholder Approval is obtained, the Company may engage (A) provide information in or otherwise participate in discussions or negotiations regarding response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal received providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement and substantially concurrently (and in any event within 24 hours) discloses (and, if applicable, provides copies of) any such information to Purchaser to the extent not previously provided to Purchaser; (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal; or (C) after the date having complied with all requirements of this AgreementSection 6.06(c) and Section 6.06(d), approve, recommend, or otherwise declare advisable or propose to approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that that, (x) prior to taking any action described in clause (A), (B) or (C) above, the Company Board (acting upon the recommendation determines in good faith after consultation with outside legal counsel that failure to take such action, in light of the Special CommitteeAcquisition Proposal and the terms of this Agreement, would be inconsistent with the directors’ fiduciary duties under applicable Law, (y) in each such case referred to in clause (A) or (B) above, the Special Committee Company Board has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal Proposal, and (z) in accordance with the Merger Agreement and case referred to in clause (C) above, the failure to take such action would reasonably be expected to be inconsistent Company Board determines in good faith (after consultation with its fiduciary duties under applicable Lawfinancial advisor and outside legal counsel) that such Acquisition Proposal is a Superior Proposal.
(c) From The Company Board shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Purchaser, the Company Board Recommendation with respect to the Merger; or
(ii) except as expressly permitted by, and after compliance with, Section 8.01(f) hereof, cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract (other than a confidentiality agreement referred to in Section 6.06(b) entered into in compliance with Section 6.06(b)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Stockholder Approval is obtained, the Company Board may withhold, withdraw, qualify or modify the Company Board Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal made after the date of this Agreement that was not solicited, initiated, encouraged or facilitated in breach of this Agreement, if the Company Board determines in good faith, after consultation with outside counsel, that failure to do so would be inconsistent with the directors’ fiduciary duties under applicable law (a “Change of Recommendation”); provided, however, that no Change of Recommendation may be made, and, for the avoidance of doubt, no action referred to in Section 6.06(b)(C) shall be taken, until after at least 72 hours following Purchaser’s receipt of notice from the Company advising that the Company currently intends to take such action and the basis therefor, including all necessary information under Section 6.06(f). In determining whether to make a Change of Recommendation or, for the avoidance of doubt, whether to take any action referred to in Section 6.06(b)(C), in response to a Superior Proposal or otherwise, the Company Board shall take into account any changes to the terms of this Agreement proposed by Purchaser and any other information provided by Purchaser in response to such notice. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.06, including with respect to the notice periods referred to in this Section 6.06(d) and Section 6.06(f).
(e) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted prior to the date hereof until with respect to any Acquisition Proposal. The Company agrees that it will take the earlier necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the termination obligations undertaken in this Section 6.06 and in the Confidentiality Agreement. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of the Merger Agreement pursuant acquiring it or any of its Subsidiaries to Article VIII thereof and the return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(f) The Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) 24 hours) notify Parent in writing following Purchaser if any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such information is requested from, or any such discussions or negotiations with negotiation are sought to be initiated or continued with, it or any Person or Group pursuant to Section 4.1(b) and shall provideof its Representatives indicating, in connection with such notice, (x) the identity name of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of and the material terms and conditions of any Acquisition Proposal andproposals or offers (including, if in writingapplicable, a copy thereof copies of any written requests, proposals or offers, including proposed Contracts) and thereafter shall keep Parent Purchaser informed, on a prompt basis (and, in any event, within forty-eight (48) hours)current basis, of any material changes in the status and terms of any such Acquisition Proposal proposals or offers (including any amendments thereto) and any material changes in the status of any such or discussions or negotiations. Notwithstanding , including any change in the foregoing, the Stockholders Company’s intentions as previously notified.
(g) Nothing contained in this Agreement shall not be required to notify Parent of any discussions or negotiations to the extent prevent the Company has notified Parent thereofor the Company Board from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to an Acquisition Proposal; provided that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement, and nothing in this clause (g) shall permit the Company to take any action otherwise contemplated by this Section 6.06 without compliance herewith.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Capital Bancorp /Ca/), Merger Agreement (Unionbancal Corp)
Acquisition Proposals. 4.7.1 The Company represents that it is not currently engaged in any activities, discussions or negotiations with respect to an Acquisition Proposal (a) as defined herein). From and after the date hereof and until and including the Effective Time (or earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and this Agreement), the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use or authorize or permit any of its reasonable best efforts to direct its Representatives not officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent of the Company, to, directly or indirectly:
, (1i) solicit, initiate, solicit, propose or knowingly encourage (including by way of furnishing or knowingly otherwise providing access to nonpublic information) any Acquisition Proposal; (ii) participate in substantive discussions or any negotiations relating to any Acquisition Proposal (or any inquiry relating to an Acquisition Proposal) or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
; or (5iii) enter into any Alternative letter of intent, agreement in principle or definitive agreement with respect to any Acquisition AgreementProposal; or
(6) authorizeprovided, resolvehowever, agree or commit to do any of the foregoing.
(b) Notwithstanding anything that, prior to the contrary Stockholders' Meeting, nothing contained in this Section 4.1(a)4.7 shall prohibit the Company or the Board from furnishing nonpublic information to, the Stockholders and their Representatives may engage in or otherwise participate in entering into discussions or negotiations regarding a bona fide written with, any person or entity with respect to any unsolicited Acquisition Proposal received after if (but only if): (a) the date of this Agreement, if Board determines reasonably and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawlaw; and (b) the Company (x) provides at least two (2) business days' notice to Parent to the effect that it is taking such action and (y) prior to any release of any nonpublic information to such person, receives from such person or entity an executed confidentiality agreement substantially similar to the Confidentiality Agreement.
4.7.2 Notwithstanding anything in this Agreement to the contrary, the Company shall promptly advise Parent orally and in writing of the receipt by it (cor by any of the other entities or persons referred to above) From after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person Acquisition Proposal or Group that is in effect of the date hereof) (y) a summary of any inquiry which could reasonably lead to an Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal andor inquiry, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), the identity of the status and terms of person or entity making any such Acquisition Proposal Proposal. The Company agrees that it will fully enforce (including by way of obtaining an injunction), and the status not waive any provision of, any confidentiality agreement to which it is a party.
4.7.3 For purposes of this Agreement, an "Acquisition Proposal" means any such proposal or discussions offer, or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent expression of any discussions or negotiations intent relating to the extent Company's willingness or ability to receive or discuss a proposal or offer made by a third party (other than Parent and Purchaser) to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, proxy solicitation, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or similar transaction, 15% or more of the combined voting power, shares or equity interests of the Company, in each case then outstanding, or 15% or more of the assets of the Company; and a "Superior Proposal" means a bona fide proposal or offer made by a third party (A) to acquire the Company has notified Parent thereofpursuant to any tender or exchange offer or any acquisition of all or substantially all of the assets of the Company or (B) to enter into a merger, consolidation or other business combination with the Company, which a majority of the members of the Board determines reasonably and in good faith is more favorable to the holders of Common Stock than the Merger.
Appears in 2 contracts
Sources: Merger Agreement (NDC Automation Inc), Merger Agreement (Code Hennessy & Simmons Ii Lp)
Acquisition Proposals. (a) From Except as expressly contemplated by this Agreement or to the extent that the Purchaser, in its sole and after the date hereof absolute discretion, has otherwise consented to in writing, until the earlier of (i) the termination completion of a Compulsory Acquisition or Subsequent Acquisition Transaction; and (ii) the Merger date, if any, on which this Agreement is terminated pursuant to Article VIII thereof and Section 6.1, the Company Merger Effective Time, subject shall not and shall cause its Representatives to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts directly or indirectly through any other person:
(i) make, initiate, solicit or knowingly encourage (including by way of furnishing or affording access to direct its Representatives not toinformation or any site visit), or take any other action that facilitates, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected with respect to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any an Acquisition Proposal or any inquiry, proposal or offer that would reasonably could be expected to lead to an Acquisition Proposal; or
(ii) participate in any discussions or negotiations with, furnish information to, or otherwise co-operate in any way with, any person (other than the Purchaser and its subsidiaries) regarding an Acquisition Proposal or that reasonably could be expected to lead to an Acquisition Proposal, it being acknowledged and agreed that, provided the Company is then in compliance with its obligations under this Section 5.1, the Company may (a) advise a Person who has submitted a written Acquisition Proposal of the restrictions in this Agreement, and (b) advise a Person who has submitted a written Acquisition Proposal that their Acquisition Proposal does not constitute a Superior Proposal; or
(iii) remain neutral with respect to, or agree to, approve or recommend, or propose publicly to agree, approve or recommend any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of three Business Days after such Acquisition Proposal has been publicly announced shall be deemed not to constitute a violation of this Section 5.1(a)(iii)); or
(iv) make or propose publicly to make a Change of Recommendation; or
(v) accept, enter into, or propose publicly to accept or enter into, any agreement, understanding or arrangement effecting or related to any Acquisition Proposal or potential Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to state that the terms of this Section 4.1 prohibit such discussions5.1(c);); or
(3vi) furnish make any public announcement (except as required by applicable Law or the rules or policies of the TSX or NYSE MKT after prior notice to the Purchaser) or take any Person other action inconsistent with the approval or recommendation of the Exeter Board of the transactions contemplated hereby.
(b) The Company and its Representatives will and will cause its subsidiaries and their Representatives to immediately cease any solicitation, knowing encouragement, discussion or negotiation with any person (other than Parent or any of the Purchaser and its Affiliatessubsidiaries) any non-public information relating to conducted heretofore by the Company or any of its Subsidiaries Representatives or afford its subsidiaries and their Representatives with respect to any such Person Acquisition Proposal and, in connection therewith, the Company will discontinue access to the business, properties, assets, books, records or other non-public any of its confidential information, or including access to any personneldata room, of virtual or otherwise, to any person (other than access by Company advisers and the Company Purchaser and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingRepresentatives).
(bc) Notwithstanding anything to the contrary contained in Section 4.1(a5.1(a), in the event that the Company receives a written Acquisition Proposal from any person after the date hereof that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.1, and subject to the Company’s compliance with Section 5.1(d), the Stockholders Company and their its Representatives may engage in (i) contact such person solely to clarify the terms and conditions of such Acquisition Proposal, (ii) furnish information with respect to it to such person pursuant to an Acceptable Confidentiality Agreement, provided that (x) the Company provides a copy of such Acceptable Confidentiality Agreement to the Purchaser promptly upon its execution or otherwise prior to providing any such information and (y) the Company contemporaneously provides to the Purchaser any non-public information concerning the Company that is provided to such person which was not previously provided to the Purchaser or its Representatives, and (iii) participate in any discussions or negotiations regarding a bona fide written such Acquisition Proposal received after the date of this AgreementProposal; provided, if and only however, that, prior to the extent that the Company Board taking any action described in clauses (acting upon the recommendation of the Special Committeeii) or (iii) above, the Special Committee has determined Exeter Board determines in good faith based on the information then available and faith, after consultation with its financial advisor advisors and outside counsel either constitutes legal counsel, that such Acquisition Proposal is or could reasonably be expected to lead to a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its violate the fiduciary duties of such directors under applicable Law.
(cd) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) 24 hours) notify Parent the Purchaser, at first orally and thereafter in writing following writing, of any discussions Acquisition Proposal (whether or negotiations with not in writing) received by the Company, any Person inquiry received by the Company that could reasonably be expected to lead to an Acquisition Proposal, or Group pursuant any request received by the Company for non-public information relating to Section 4.1(b) and shall provide, the Company in connection with such noticean Acquisition Proposal or for access to the properties, (x) the identity books or records of the Person or Group Company by any person that informs the Company that it is considering making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is an Acquisition Proposal, including if in effect writing a copy of the date hereof) (y) Acquisition Proposal, a summary description of the material terms and conditions of such inquiry or request and the identity of the person making such Acquisition Proposal, inquiry or request, and promptly provide to the Purchaser such other information concerning such Acquisition Proposal, inquiry or request as the Purchaser may reasonably request. The Company will keep the Purchaser promptly and fully informed of the status and details (including all amendments) of any such Acquisition Proposal, inquiry or request.
(e) Except as expressly permitted by this Section 5.1, neither the Exeter Board, nor any committee thereof shall: (i) make a Change of Recommendation, (ii) accept, approve, endorse or recommend or publicly propose to accept, approve, endorse or recommend any Acquisition Proposal, (iii) permit the Company to accept or enter into, or publicly propose to enter into (or permit any such actions in the case of the Exeter Board or any committee thereof), any letter of intent, memorandum of understanding or other Contract, agreement in principle, acquisition agreement, merger agreement or similar agreement or understanding, other than an Acceptable Confidentiality Agreement (an “Acquisition Agreement”) with respect to any Acquisition Proposal or (iv) permit the Company to accept or enter into any Contract requiring the Company to abandon, terminate or fail to consummate the Contemplated Transactions or providing for the payment of any break, termination or other fees or expenses to any person proposing an Acquisition Proposal in the event that the Company completes the transactions contemplated hereby or any other transaction with the Purchaser or any of its affiliates.
(f) Notwithstanding Section 5.1(e), in the event the Company receives an Acquisition Proposal that is a Superior Proposal from any person after the date hereof, then the Exeter Board may withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Offer and/or approve or recommend such Superior Proposal and/or enter into an Acquisition Agreement with respect to such Superior Proposal but only if:
(i) the Company has given written notice to the Purchaser that it has received such Superior Proposal that complies with Section 5.1(d) hereof and that the Exeter Board has determined that (x) such Acquisition Proposal constitutes a Superior Proposal and (y) the Exeter Board intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Offer, and/or enter into an Acquisition Agreement with respect to such Superior Proposal in each case promptly following the making of such determination, together with a summary of the material terms of any proposed Acquisition Agreement or other agreement relating to such Superior Proposal (together with a copy of such agreement and any ancillary agreements) to be executed with the person making such Superior Proposal and, if in writingapplicable, a copy thereof and thereafter written notice from the Exeter Board regarding the value or range of values in financial terms that the Exeter Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered in the Superior Proposal;
(ii) a period of five full Business Days (such period being the “Superior Proposal Notice Period”) shall keep Parent informed, on a prompt basis (have elapsed from the date the Purchaser received the notice from the Company referred to in Section 5.1(f)(i) and, if applicable, the notice from the Exeter Board with respect to any non-cash consideration as contemplated in any event, within forty-eight (48) hoursSection 5.1(f)(i), together with the summary of material terms and copies of agreements referred to therein. During the Superior Proposal Notice Period, the Purchaser shall have the right, but not the obligation, to propose to amend the terms of the status Offer and terms this Agreement;
(iii) the Company did not breach any provision of any this Section 5.1 in connection with the preparation or making of such Acquisition Proposal and the status Company has complied with the other terms of this Section 5.1(f);
(iv) if the Purchaser has proposed to amend the terms of the Offer and this Agreement in accordance with Section 5.1(f)(ii), the Exeter Board shall have determined in accordance with Section 5.1(g) that such Acquisition Proposal remains a Superior Proposal compared to the Offer and this Agreement as proposed to be amended by the Purchaser;
(v) the Company concurrently terminates this Agreement pursuant to Section 6.1(d)(i); and
(vi) the Company has previously paid, or concurrently with such termination pays, to the Purchaser the Termination Fee.
(g) The Exeter Board will review in good faith any offer made by the Purchaser to amend the terms of the Offer and this Agreement in order to determine, in consultation with its financial advisors and outside legal counsel, whether the proposed amendments would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. The Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of the making of, and each of the terms of, any such proposed amendments shall be kept strictly confidential and shall not be disclosed to any person (including without limitation, the person having made the Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written consent. If the Exeter Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of the amendments proposed by the Purchaser, the Company will forthwith so advise the Purchaser and will promptly thereafter accept the offer by the Purchaser to amend the terms of the Offer and this Agreement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoing. If the Exeter Board continues to believe in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal remains a Superior Proposal and therefore rejects the Purchaser’s offer to amend the Offer and this Agreement, if any, the Company may, subject to compliance with the other provisions hereof, terminate this Agreement in accordance with Section 6.1(d)(i) to enter into an Acquisition Agreement in respect of such Superior Proposal.
(h) Each successive modification of any Superior Proposal shall constitute a new Superior Proposal for the purposes of Section 5.1(f) and shall require a new five full Business Day Superior Proposal Notice Period from the date described in Section 5.1(f)(ii) with respect to such new Superior Proposal.
(i) The Exeter Board shall reaffirm its recommendation in favour of the Offer by news release promptly after (A) the Exeter Board has determined that any Acquisition Proposal is not a Superior Proposal if the Acquisition Proposal has been publicly announced or made; or (B) the Exeter Board makes the determination referred to in Section 5.1(g) that an Acquisition Proposal that has been publicly announced or made and which previously constituted a Superior Proposal has ceased to be a Superior Proposal. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Exeter Board has determined that such Acquisition Proposal is not a Superior Proposal.
(j) The Company will not become a party to any Contract with any person subsequent to the date hereof that limits or discussions prohibits the Company from (x) providing or negotiations. Notwithstanding making available to the foregoingPurchaser and its affiliates and Representatives any information provided or made available to such person or its officers, directors, employees, consultants, advisors, agents or other representatives (including solicitors, accountants, investment bankers and financial advisors) pursuant to any confidentiality agreement described in this Section 5.1 or (y) providing the Purchaser and its affiliates and Representatives with any other information required to be given to it by the Company under this Section 5.1.
(k) Unless this Agreement is terminated, the Stockholders Company agrees (i) not to release any persons from, or terminate, modify, amend or waive the terms of, any confidentiality agreement or standstill agreement or standstill provisions in any such confidentiality agreement that the Company entered into prior to the date hereof, (ii) to promptly and diligently enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it has entered into prior to the date hereof or enter into after the date hereof (it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement as the result of the entering into and announcement of this Agreement by the Company, pursuant to the express terms of any such agreement, shall not be a violation of this subsection 5.1(k)).
(l) Notwithstanding any of the provisions of this Section 5.1, the Exeter Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to notify Parent any take-over bid or tender or exchange offer made for the Exeter Shares that it determines is not a Superior Proposal.
(m) The Company shall ensure that its Representatives are aware of any discussions or negotiations to the extent provisions of this Section 5.1, and the Company has notified Parent thereofshall be responsible for any breach of this Section 5.1 by any of its Representatives.
Appears in 2 contracts
Sources: Support Agreement (Goldcorp Inc), Support Agreement (Goldcorp Inc)
Acquisition Proposals. (a) From and after Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date hereof of this Agreement and continuing until the earlier of (x) August 8, 2008, and (y) the termination of date that is five days prior to the Merger Agreement pursuant to Article VIII thereof and Mailing Date, the Company Merger Effective Timeand its subsidiaries and their respective officers, subject to Section 8directors, each of employees, consultants, agents, advisors, affiliates and other representatives (“Representatives”) shall have the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not right to, directly or indirectly:, (i) initiate, solicit and encourage Acquisition Proposals (as hereinafter defined), including by way of providing access to non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (as hereinafter defined); provided that the Company shall promptly provide to Parent any information concerning the Company or its subsidiaries that is provided to any person given such access that was not previously provided to Parent, and (ii) enter into and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with, assist, participate in or facilitate any such inquiries, proposals, discussions or negotiations; provided, however, that the Company shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal after the date hereof, which notice shall include the identity of the person making such Acquisition Proposal and set forth in reasonable detail its material terms and conditions (including information relating to the financing thereof), and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal and provide a copy of all written materials provided to or by the Company in connection with such Acquisition Proposal.
(b) Except as provided in this Section 7.4, from (x) the earlier of (1) August 8, 2008, and (2) the date that is five days prior to the Mailing Date until (y) the earlier of (1) the Effective Time and (2) the termination of this Agreement in accordance with Article IX, none of the Company, its subsidiaries nor any of their respective Representatives shall, directly or indirectly, (i) initiate, solicit, propose solicit or knowingly encourage encourage, or knowingly facilitate any inquiries or with respect to, (including by way of providing information) the making submission of any proposal inquiries, proposals or offer offers or any other efforts or attempts that constitutesconstitute, or would may reasonably be expected to lead to, any Acquisition Proposal;
(2) engage ina tender offer or exchange offer, continue proposal for a merger, consolidation or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal other business combination involving the Company and its subsidiaries or any inquiry, proposal or offer that would reasonably be expected to lead to acquire in any manner an Acquisition Proposal (equity interest representing a 20% or greater economic or voting interest in the Company, or the assets, securities or other than to state that the terms ownership interests of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to in the Company or any of its Subsidiaries subsidiaries representing 20% or afford to any such Person access to more of the business, properties, assets, books, records or other non-public information, or to any personnel, consolidated assets of the Company and its Subsidiariessubsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer, an “Acquisition Proposal”) or engage in any such case discussions or negotiations with the intent to inducerespect thereto or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal or enter into any merger agreement, letter of intent, agreement in principle, share-purchase agreement, asset-purchase agreement or share-exchange agreement, option agreement or other similar agreement providing for, or relating to, an Acquisition Proposal or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iii) take any action to exempt any person from the restrictions on “business combinations” contained in the Maryland Business Combination Act or otherwise cause such restrictions not to apply, (iv) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates or (v) propose or agree to do any of the foregoing. Except as provided in this Section 7.4, on the date that is the earlier of (1) August 8, 2008, and (2) the date that is five days prior to the Mailing Date, the Company shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any persons conducted theretofore by the Company, its subsidiaries or any Representatives with respect to any Acquisition Proposal.
(c) If, at any time following the date of this Agreement and prior to the adoption of this Agreement by the Company’s stockholders in accordance with this Agreement, (x) the Company has received a written Acquisition Proposal from a third party that (1) the board of directors of the Company believes in good faith to be bona fide and (2) did not result from a breach of Section 7.4(b), (y) the Company’s board of directors determines in good faith, after consultation with its independent financial advisors and outside counsel, that such Acquisition Proposal constitutes, or could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
a Superior Proposal and (4z) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result counsel, the board of directors of the Company determines in a Superior Proposal in accordance with the Merger Agreement and good faith that the failure to take such action would could reasonably be expected to be inconsistent with violate its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and , then the Company Merger Effective Time, subject may (i) furnish information with respect to Section 8, each Stockholder (solely in the Company and its capacity as a stockholder of subsidiaries to the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group person making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Acquisition Proposals. (a) From Subject to Section 6.4(b), the Company shall, and after shall cause its subsidiaries and the officers, directors, employees, investment bankers, representatives and agents of the Company and its subsidiaries to, from the date hereof until the earlier of Effective Time or, if earlier, the termination of the Merger this Agreement pursuant to Article VIII thereof and the Company Merger Effective Timein accordance with Section 8.1, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
(1i) initiate, solicit, propose or knowingly encourage initiate or knowingly facilitate or encourage (including by way of furnishing non-public information or providing access to its properties, books, records or personnel) any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
, (4ii) approve, endorse participate in any discussions or recommend any proposal that constitutes or would reasonably be expected to lead to, negotiations regarding an Acquisition Proposal;
Proposal (5other than with Parent and its representatives) enter into or (iii) grant any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree waiver or commit release under any standstill or similar agreement with respect to do any class of equity securities of the Company or any of the foregoingits subsidiaries.
(b) Notwithstanding anything to the contrary contained in Section 4.1(a6.4(a), if, at any time following the Stockholders date hereof and their Representatives may engage in or otherwise participate in discussions or negotiations regarding prior to 11:59 p.m., Boston time, on July 25, 2011, the Company receives a bona fide written Acquisition Proposal received after the date from any person (that does not arise out of a breach of Section 6.4(a) of this Agreement or Section 5.02 of the Voting Agreement, if and only to the extent ) that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and (i) after consultation with its a financial advisor and outside counsel either of nationally recognized reputation, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance and (ii) after consultation with the Merger Agreement and outside counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such action Acquisition Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and law, the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (andmay, in any eventresponse to such Acquisition Proposal and until 11:59 p.m., within forty-eight Boston time, on July 25, 2011 (48) hours) notify Parent after which time the Company and its representatives shall cease immediately all actions set forth in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(bclauses (x) and shall provide, in connection with such notice(y) below), (x) furnish information (including non-public information) with respect to the identity of Company and its subsidiaries to the Person or Group making person who has made such proposal (unless such disclosure is prohibited Acquisition Proposal, pursuant to the terms of any a confidentiality agreement (with such Person or Group terms and conditions that is in effect are not materially less favorable to the Company than the Confidentiality Agreement between the Company and Parent dated January 14, 2011) (a copy of the date hereofwhich shall be provided to Parent) and (y) participate in discussions and negotiations regarding such Acquisition Proposal. The Company shall as promptly as practicable (and in any event within 36 hours after receipt), notify Parent both orally and in writing of the receipt of any Acquisition Proposal, any inquiries relating to an Acquisition Proposal or any request for information from, or any negotiations sought to be initiated or continued with, either the Company or its representatives concerning an Acquisition Proposal. The Company’s written notice shall include a written summary of the material terms of such Acquisition Proposal, inquiry or request, including the identity of the person or group of persons making the Acquisition Proposal, inquiry or request. The Company shall as promptly as practicable (and conditions in any event within 24 hours after taking such action) advise Parent of any decision to take any of the actions referred to in the foregoing clauses (x) and (y) with respect to any Acquisition Proposal and, if in writing, a copy thereof and thereafter Proposal. The Company shall keep Parent informed, reasonably informed on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.reasonably prompt
Appears in 2 contracts
Sources: Merger Agreement (Timberland Co), Agreement and Plan of Merger (V F Corp)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct cause the officers, directors, employees, agents and use representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent, representative or Affiliate (collectively as to each Party, the “Representatives”) of the Company or any of its reasonable best efforts to direct its Representatives Subsidiaries not to, directly or indirectly:
(1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6iii) authorize, resolve, agree otherwise knowingly facilitate any effort or commit attempt to do any of the foregoingmake an Acquisition Proposal.
(b) Notwithstanding anything in Section 6.05(a) to the contrary in Section 4.1(a)contrary, prior to the time, but not after, the Stockholders and their Representatives Requisite Shareholder Approval is obtained, the Company may engage (i) provide information in or otherwise participate in discussions or negotiations regarding response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal received providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement and substantially concurrently (and in any event within two (2) Business Days) discloses (and, if applicable, provides copies of) any such information to Acquirer to the extent not previously provided to Acquirer; (ii) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal; or (iii) after having complied with all requirements of Section 6.05(c) and Section 6.05(d), approve, recommend, or otherwise declare advisable or propose to approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if, but only to the date extent that, (x) prior to taking any action described in clause (i), (ii) or (iii) above, the Company Board determines in good faith after consultation with outside legal counsel that failure to take such action, in light of the Acquisition Proposal and the terms of this Agreement, if and only would be inconsistent with the directors’ fiduciary duties under applicable Law, (y) in each such case referred to the extent that in clause (i) or (ii) above, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel either that such Acquisition Proposal constitutes a Superior Proposal, and (z) in the case referred to in clause (iii) above, the Company Board determines in good faith after consultation with its financial advisor and outside legal counsel that such Acquisition Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable LawProposal.
(c) From The Company Board shall not withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Acquirer, the Company Board Recommendation with respect to the Merger. Notwithstanding the preceding sentence, prior to the time, but not after, the Requisite Shareholder Approval is obtained, the Company Board may withhold, withdraw, qualify or modify the Company Board Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal made after the date of this Agreement that was not solicited, initiated, encouraged or facilitated in breach of this Agreement, if the Company Board determines in good faith, after consultation with outside counsel, that failure to do so would be in violation of the directors’ fiduciary duties under applicable Law (a “Change of Recommendation”); provided, however, that no Change of Recommendation may be made, and, for the avoidance of doubt, no action referred to in Section 6.05(b)(iii) shall be taken, until after at least 72 hours following Acquirer’s receipt of notice from the Company advising that the Company currently intends to take such action and the basis therefor, including all necessary information under Section 6.05(e). In determining whether to make a Change of Recommendation or, for the avoidance of doubt, whether to take any action referred to in Section 6.05(b)(iii), in response to a Superior Proposal or otherwise, the Company Board shall take into account any changes to the terms of this Agreement proposed by Acquirer and any other information provided by Acquirer in response to such notice. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.05, including with respect to the notice periods referred to in this Section 6.05(c) and Section 6.05(e).
(d) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted prior to the date hereof until with respect to any Acquisition Proposal. The Company agrees that it will take the earlier necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the termination obligations undertaken in this Section 6.05 and in the Confidentiality Agreement. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of the Merger Agreement pursuant to Article VIII thereof and acquiring the Company Merger Effective Time, subject or any of its Subsidiaries to Section 8, each Stockholder return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(solely in its capacity as a stockholder of the Companye) The Company agrees that it will promptly (and, in any event, within forty-eight two (482) hoursBusiness Days) notify Parent in writing following Acquirer if any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such information is requested from, or any such discussions or negotiations with negotiation are sought to be initiated or continued with, it or any Person or Group pursuant to Section 4.1(b) and shall provideof its Representatives indicating, in connection with such notice, (x) the identity name of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of and the material terms and conditions of any Acquisition Proposal andproposals or offers (including, if in writingapplicable, a copy thereof copies of any written requests, proposals or offers, including proposed Contracts) and thereafter shall keep Parent Acquirer informed, on a prompt basis (and, in any event, within forty-eight (48) hours)current basis, of any material changes in the status and terms of any such Acquisition Proposal proposals or offers (including any amendments thereto) and any material changes in the status of any such or discussions or negotiations. Notwithstanding , including any change in the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofCompany’s intentions as previously notified.
Appears in 2 contracts
Sources: Merger Agreement (BBCN Bancorp Inc), Merger Agreement (BBCN Bancorp Inc)
Acquisition Proposals. (a) From Subject to Sections 7.2(b) and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time7.2(d), subject to Section 8, each of the Stockholders hereby agrees that it shall notno Green Entity shall, and it they shall instruct and use its reasonable best efforts to direct its cause their Representatives not to, directly or indirectly:
, (1i) solicit, initiate, solicitencourage (including by providing information or assistance), propose facilitate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, induce any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide furnish or cause to be furnished to any non-public Person any confidential or nonpublic information or data to any Person or Group relating with respect to, or take any Acquisition Proposal other action to facilitate any inquiries or the making of any inquiry, offer or proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public informationconstitutes, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolveapprove, agree to, accept, endorse or commit recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to do approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Green shall constitute a breach of this Section 7.2 by Green. Subject to Sections 7.2(b) and 7.2(d), in addition to the foregoing, Green shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(b) Notwithstanding anything to the contrary in Section 4.1(a7.2(a), the Stockholders and their if Green or any of its Representatives may engage in or otherwise participate in discussions or negotiations regarding a receives an unsolicited, bona fide written Acquisition Proposal received by any Person at any time prior to the Green Shareholder Approval that did not result from or arise in connection with a breach of Section 7.2(a), the Green Entities and their Representatives may, prior to (but not after) the Green Shareholder Approval, take the following actions if the board of directors of Green (or any duly and properly authorized committee thereof) has (i) determined, in its good faith judgment (after consultation with Green’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the date failure to take such actions by the board of this Agreementdirectors of Green (or any duly and properly authorized committee thereof) would reasonably likely cause it to violate its fiduciary duties under applicable Law, and (ii) obtained from such Person an executed confidentiality agreement containing terms (with respect to each provision) at least as restrictive with respect to such Person as the terms of the Confidentiality Agreement with respect to Veritex (and such confidentiality agreement shall not provide such Person with any exclusive right to negotiate with Green): (A) furnish information to (but only if Green shall have provided such information to Veritex prior to furnishing it to any such Person), and (B) enter into discussions and negotiations with, such Person with respect to such unsolicited, bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that would reasonably be expected to lead to any Acquisition Proposal, Green shall advise Veritex in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry), and Green shall as promptly as practicable provide to Veritex (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Green shall provide Veritex as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep Veritex informed on a current basis of all developments, discussions, negotiations and only communications regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the extent that contrary, at any time prior to the Company Board Green Meeting, the board of directors of Green may make a Change in the Green Recommendation (acting upon including, for the recommendation avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if (A) Green has received a Superior Proposal (after giving effect to the Special Committeeterms of any revised offer by Veritex pursuant to this Section 7.2(d)), and (B) or the Special Committee board of directors of Green has determined in good faith based on the information then available and faith, after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Green may not take the actions set forth in this Section 7.2(d) unless:
(i) Green has complied in all material respects with the terms of this Section 7.2 applicable to Green;
(ii) Green has provided Veritex at least five days prior written notice of its intention to take such action and a reasonable description of the events or circumstances giving rise to its determination to take such action (including all necessary information under Section 7.2(c));
(iii) during such five-day period, Green has and has caused its financial advisors and outside legal counsel to, consider and negotiate with Veritex in good faith (to the extent Veritex desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by Veritex; and
(iv) the board of directors of Green has determined in good faith, after consultation with outside legal counsel, considering the results of the negotiations contemplated in Section 7.2(d)(iii) and giving effect to any proposals, amendments or modifications proposed by Veritex (if any) that such Superior Proposal remains a Superior Proposal and that failure to make a Change in the Green Recommendation would be a violation of the directors’ fiduciary duties under applicable Law and, in which event, the board of directors of Green may communicate the basis for its lack of Green Recommendation to its shareholders in the Joint Proxy/Prospectus or an appropriate amendment or supplement thereto to the extent required by Law; provided, that the resolution approving this Agreement as of the date hereof may not be rescinded or amended. Any material amendment to any Superior Proposal (including any amendment to the value of, or change to the type of, consideration that would be payable to holders of Green Common Stock in the Superior Proposal), will be deemed to be a new Superior Proposal for purposes of this Section 7.2(d) and will require a new determination and notice period as referred to in this Section 7.2(d).
(ce) From the date hereof until the earlier Promptly (but in no event more than 24 hours) following receipt of any Veritex Acquisition Proposal or any request for nonpublic information or any inquiry that would reasonably be expected to lead to any Veritex Acquisition Proposal, Veritex shall advise Green in writing of the termination receipt of such Veritex Acquisition Proposal, request or inquiry, and the terms and conditions of such Veritex Acquisition Proposal, request or inquiry (including, in each case, the identity of the Merger Agreement pursuant Person making any such Veritex Acquisition Proposal, request or inquiry), and Veritex shall, as promptly as practicable provide to Article VIII thereof Green a written summary of the material terms of such Veritex Acquisition Proposal, request or inquiry. Veritex shall provide Green as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep Green informed on a current basis of all developments, discussions, negotiations and communications regarding (including amendments or proposed amendments to) such Veritex Acquisition Proposal, request or inquiry.
(f) Green and the Company Merger Effective TimeGreen Subsidiaries shall, subject and Green shall direct its Representatives to, (i) immediately cease and cause to Section 8be terminated any and all existing activities, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person conducted heretofore with respect to any offer or Group proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than Veritex and its Representatives) that has made or indicated an intention to make an Acquisition Proposal, and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(g) Nothing contained in this Agreement shall prevent Green or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the shareholders of Green; provided, that such rules will in no way eliminate or modify the effect that any action pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofrules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Agreement and Plan of Reorganization (Veritex Holdings, Inc.)
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall notNo Target Entity shall, and it each Target Entity shall instruct and use its reasonable best efforts to direct cause its Representatives not to, directly or indirectly:
, (1i) solicit, initiate, solicitencourage (including by providing information or assistance), propose facilitate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, induce any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information furnish or data cause to be furnished to any Person or Group relating “Group” (as such term is defined in Section 13(d) under the Exchange Act) any nonpublic information with respect to, or take any Acquisition Proposal other action to facilitate any inquiries or the making of any inquiry, offer or proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public informationconstitutes, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolveapprove, agree to, accept, endorse or commit recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to do approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the foregoingrestrictions set forth in this Section 7.2(a) by any Subsidiary or Representative of Target shall constitute a breach of this Section 7.2(a) by Target.
(b) Notwithstanding anything to the contrary in Section 4.1(a7.2(a), the Stockholders and their if Target or any of its Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide receives an unsolicited, written Acquisition Proposal received after by any Person or “Group” (as such term is defined in Section 13(d) under the date of this Agreement, if and only Exchange Act) at any time prior to the extent Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Target and its Representatives may, prior to (but not after) obtaining the Company Board Target Shareholder Approval, take the following actions if the board of directors of Target (acting upon the recommendation of the Special Committeeor any committee thereof) or the Special Committee has determined (i) determined, in its good faith based on the information then available and judgment (after consultation with its Target’s financial advisor advisors and outside counsel either legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, and (ii) obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of the Confidentiality Agreement is with respect to Buyer: (A) furnish information to, and (B) enter into discussions and negotiations with, such Person or “Group” with respect to such written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Target shall advise Buyer in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and Target shall as promptly as practicable provide to Buyer (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Target agrees that it shall simultaneously provide to Buyer any non-public information concerning Target or any Target Subsidiaries that may be provided (pursuant to Section 7.2(b)) to any other Person or “Group” in connection with any written Acquisition Proposal which has not previously been provided to Buyer. In addition, Target shall provide Buyer as promptly as practicable with notice setting forth all such information as is reasonably necessary to keep Buyer informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Shareholders’ Meeting, if Target has received a Superior Proposal (after giving effect to the terms of any revised offer by Buyer pursuant to this Section 7.2(d)), the board of directors of Target may, in connection with such Superior Proposal, make a Change in the Target Recommendation (including, for the avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the board of directors of Target has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided, that the board of directors of Target may not make a Change in the Target Recommendation unless:
(i) Target has complied in all material respects with this Section 7.2;
(ii) Target has provided prior written notice to Buyer at least three business days in advance (the “Notice Period”) of taking such action, which notice shall advise Buyer that the board of directors of Target has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Target has and has caused its financial advisors and outside legal counsel to, negotiate with Buyer in good faith (to the extent Buyer desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Target) a Superior Proposal; and
(iv) the board of directors of Target has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by Buyer, if any, that such Superior Proposal remains a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Target shall deliver a new written notice to Buyer and shall comply with the requirements of this Section 7.2(d) with respect to such new written notice. Notwithstanding any Change in the Target Recommendation, this Agreement shall be submitted to the shareholders of Target at the Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Target of such obligation; provided, that if the board of directors of Target shall have effected a Change in the Target Recommendation, then the board of directors of Target must nonetheless submit this Agreement to Target’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the board of directors of Target may communicate the basis for its lack of a recommendation to Target’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Target shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(e) Target and its Subsidiaries shall, and Target shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than the Parties) that has made or indicated an intention to make an Acquisition Proposal, and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(f) Nothing contained in this Agreement shall prevent Target or its board of directors from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to Target shareholders if Target’s board of directors (after consultation with outside legal counsel) concludes that its failure to do so would be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms . Issuance of any such Acquisition Proposal and communication shall be deemed a Change in the status Target Recommendation unless the communication includes a reaffirmation of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent Target Recommendation in favor of any discussions or negotiations to the extent the Company has notified Parent thereofadoption by Target’s shareholders of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Banctrust Financial Group Inc), Merger Agreement (Banctrust Financial Group Inc)
Acquisition Proposals. (a) From and after Except as otherwise expressly provided in this Section 5.4 or in Section 5.8, from the date hereof of this Agreement until the earlier of Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Merger Agreement pursuant to Article VIII thereof Company shall not, nor will it authorize or permit any of its Subsidiaries, directors, officers, or employees to, and the Company Merger Effective Time, subject to Section 8, each shall not permit the Representatives of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not Company to, directly or indirectly:
(1i) initiate, solicit, propose or knowingly encourage solicit or knowingly facilitate or encourage any inquiries with respect to, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead toof, any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any negotiations or discussions or negotiations regardingconcerning, or provide access to its or its Subsidiaries’ properties, books and records or any non-public confidential information or data to any Person or Group relating to, any Person relating to an Acquisition Proposal or any inquiryproposal, proposal offer or offer inquiry that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement, (iv) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (v) execute or enter into into, any Alternative letter of intent, merger agreement, acquisition agreement or other agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (each, an “Acquisition Agreement”); provided that it is understood and agreed that any determination or action by the Company Board or the Company expressly permitted under Section 5.4(b) or Section 5.4(c) shall not be deemed to be a breach or violation of this Section 5.4(a) or
, in the case of Section 5.4(b)(i)—(v), give Parent a right to terminate this Agreement pursuant to Section 7.4. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any solicitations, discussions or negotiations with any Person (6other than the parties hereto) authorizein connection with an Acquisition Proposal, resolve, agree in each case that exists as of the date hereof. The Company also agrees that it will promptly request each Person (other than the parties hereto) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or commit destroy all confidential information furnished to do such Person by or on behalf of it or any of its Subsidiaries prior to the foregoing.
date hereof. The Company shall promptly (bbut in no event later than 48 hours after receipt thereof) notify Parent in writing of the receipt of any Acquisition Proposal or any proposal, offer or inquiry that could reasonably be expected to lead to an Acquisition Proposal after the date hereof, which notice shall include a summary of the material terms of and the identity of the Person making, such Acquisition Proposal, other proposal, offer or inquiry and the Company shall thereafter keep Parent reasonably informed in all material respects on a reasonably current basis of any substantive developments (including any material change to the terms thereof) regarding any such Acquisition Proposal and shall promptly (but in no event later than 48 hours after receipt) provide to Parent copies of all substantive written requests, proposals, offers or proposed agreements received by the Company or any of its Subsidiaries that describe any terms or conditions of any such Acquisition Proposal. Notwithstanding anything to the contrary in Section 4.1(a)herein, the Stockholders and their Representatives Company may engage in grant a waiver, amendment or otherwise participate in discussions release under any confidentiality or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only standstill agreement to the extent that necessary to allow for a confidential Acquisition Proposal to be made to the Company or the Company Board (acting upon if the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and Company Board determines after consultation with its financial advisor and outside legal counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and Company that the failure to take waive or release such action provision would be reasonably be expected likely to be inconsistent with its fiduciary duties under applicable Law.
(cb) From Notwithstanding anything to the date hereof until contrary in Section 5.4(a), nothing contained in this Agreement shall prevent the earlier Company or the Company Board from:
(i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), making any “stop-look-and-listen” communication to the stockholders of the termination of the Merger Agreement Company pursuant to Article VIII thereof and Rule 14d-9(f) under the Company Merger Effective Time, subject Exchange Act (or any similar communications to Section 8, each Stockholder (solely in its capacity as a stockholder the stockholders of the Company) agrees or from making any disclosure to stockholders that it will promptly the Company determines is legally required, including with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided, that nothing set forth in this Section 5.4(b)(i) shall be deemed to (x) modify or supplement the definition of “Change of Board Recommendation” or (y) permit the Company or the Company Board to make a Change of Board Recommendation except as otherwise permitted pursuant to Section 5.4 or Section 5.8(f) (for the avoidance of doubt, the issuance by the Company or the Company Board of any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company) which does not effect a Change of Board Recommendation shall not in and of itself constitute a Change of Board Recommendation));
(ii) prior to obtaining the Requisite Stockholder Approval, contacting and engaging in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group group and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a), solely for the purpose of clarifying such Acquisition Proposal and the terms thereof;
(iii) prior to obtaining the Requisite Stockholder Approval, providing access to its properties, books and records and providing information or data in response to a request therefor by a Person or group who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a), if (A) the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisor, that such Acquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal, (B) the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement and (C) promptly (and in any event within 24 hours) after furnishing or making available any non-public information concerning the Company and its Subsidiaries to any such Person, the Company furnishes or makes available such information to Parent or its Representatives (to the extent such information has not been previously furnished or made available by the Company to Parent or its Representatives);
(iv) prior to obtaining the Requisite Stockholder Approval, contacting and engaging in any negotiations or discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a) (which negotiations or discussions need not be solely for clarification purposes) if the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisor, that such Acquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal; or
(v) prior to obtaining the Requisite Stockholder Approval, making a Change of Board Recommendation (to the extent permitted by Section 5.4(c) or Section 5.4(d), as applicable, and Section 5.8(f)).
(c) Notwithstanding anything in this Section 5.4 to the contrary, if, at any time prior to obtaining the Requisite Stockholder Approval, the Company Board determines in good faith, after consultation with its legal counsel and financial advisor, in response to an Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.4(a), that such proposal constitutes a Superior Proposal, the Company or the Company Board may make a Change of Board Recommendation or terminate this Agreement pursuant to Section 4.1(b7.3(b) and shall provideto enter into a definitive agreement with respect to such Superior Proposal; provided, that the Company will not be entitled to terminate this Agreement in accordance with Section 7.3(b) or effect a Change of Board Recommendation in connection with such notice, a Superior Proposal unless (xi) the identity of Company shall have delivered to Parent a written notice (a “Company Notice”) advising Parent that the Person or Group making Company Board proposes to take such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board and all material documents relating thereto; provided, further, that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply again with the requirements of this Section 5.4(c) with respect to such new written notice (it being understood that the Notice Period in respect of such new written notice shall expire at 5:00 pm New York City time on the second (2nd) Business Day immediately following the day on which the Company delivered such new written notice), (ii) the Company Board shall have determined in good faith, after consultation with legal counsel, that failure to effect a Change of Board Recommendation or terminate this Agreement to enter into a Superior Proposal, as applicable, would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (iii) (A) the Company Board shall have considered in good faith any proposed changes to this Agreement proposed in writing by Parent no later than 5:00 p.m., New York City time, on the third (3rd) Business Day immediately following the day on which the Company delivered the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the third (3rd) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), the Company Board, taking into account any proposed changes to this Agreement proposed during the Notice Period, shall have again made the determination required by clause (ii) of this Section 5.4(c) and (B) in the case of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Acquisition Agreement for a Superior Proposal, the Company shall have complied in all material respects with its obligations under this Section 5.4 and, if concurrently therewith or prior thereto, have paid the Termination Fee in writingaccordance with Section 7.5(b). If requested by Parent, a copy thereof the Company shall have, and thereafter shall keep have caused its Representatives to, during the Notice Period, engage in good faith negotiations with Parent informed, on a prompt basis (and, and its Representatives to make such adjustments in any event, within forty-eight (48) hours), the terms and conditions of the status and terms of any this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, other than in connection with an Acquisition Proposal received by the Company or its Subsidiaries, the Company Board may at any time prior to obtaining the Requisite Stockholder Approval take or fail to take the actions specified in clauses (i) or (iii) of the definition of Change of Board Recommendation (and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders Company shall not be required to notify Parent of any discussions or negotiations to the extent include the Company has Board Recommendation in the Proxy Statement) in response to an Intervening Event if the Company Board shall have determined in good faith, after consultation with its legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that, (i) the Company notified Parent thereofin writing at least three (3) Business Days before taking such action of its intention to do so, attaching a reasonably detailed description of the basis of such proposed action; and (ii) after such three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with its legal counsel, and taking into account any proposal by Parent to amend the terms of this Agreement made during such period, that the failure to take such action would still be reasonably likely to be inconsistent with its fiduciary duties under applicable Law. If requested by Parent, the Company will, and will cause its Representatives to, during such Notice Period, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that such Intervening Event would cease to warrant a Change of Board Recommendation.
(e) For purposes of this Agreement, the following terms shall have the meaning assigned below:
Appears in 2 contracts
Sources: Merger Agreement (Wyndham Hotels & Resorts, Inc.), Merger Agreement (Wyndham Worldwide Corp)
Acquisition Proposals. (a) From and after the date hereof until the earlier Neither CMB nor any of the termination Shareholders will, nor will CMB nor any of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective TimeShareholders authorize or permit any officer, subject to Section 8director or employee of or any investment banker, each financial advisor, attorney or other advisor or representative of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not CMB or any Shareholder to, directly or indirectly:
, (1i) initiate, solicit, propose initiate or knowingly encourage the submission of any Acquisition Proposal (as defined in subsection (c) below), (ii) enter into any agreement with respect to any Acquisition Proposal, or knowingly (iii) participate in any discussions or negotiations regarding, or furnish to any person or entity any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;. Without limiting the foregoing, it is understood that any violation of this Section 4.2(a) by any employee, director or officer of CMB or any Shareholder or any investment banker, financial advisor, attorney or other advisor retained by CMB or any Shareholder, whether or not such person is purporting to act on behalf of CMB or any Shareholder or otherwise, will be deemed to be a breach of this Section 4.2(a) by CMB or such Shareholder.
(2b) engage in, continue or otherwise participate CMB and each of the Shareholders will promptly advise Core orally and in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, writing of any Acquisition Proposal or any inquiryinquiry with respect to, proposal or offer that would reasonably be expected to which could lead to an to, any Acquisition Proposal, the terms and conditions of such inquiry or Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(bincluding financial) and shall provide, in connection with such notice, (x) the identity of the Person person or Group entity making any such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person Acquisition Proposal or Group that is in effect inquiry. CMB and each of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall Shareholders will keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), Core fully informed of the status and terms details of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofinquiry.
Appears in 2 contracts
Sources: Merger Agreement (Core Industries Inc), Merger Agreement (Core Industries Inc)
Acquisition Proposals. (a) From Unless and after the date hereof until the earlier of the termination of the Merger this Agreement shall have been terminated by either party pursuant to Article VIII thereof VII hereof, the Company, its Subsidiaries, or any of the respective officers and directors of the Company Merger Effective Timeor its Subsidiaries, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it the Company shall instruct direct and use its reasonable best efforts to direct cause its Representatives not toemployees, directly or indirectly:
agents and representatives (1) initiateincluding, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead towithout limitation, any Acquisition Proposal;
(2) engage ininvestment banker, continue attorney or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to accountant retained by the Company or any of its Subsidiaries Subsidiaries) not to, take or afford cause, directly or indirectly, any of the following actions with any party other than Parent, Merger Sub or their respective designees: (i) solicit, knowingly encourage, initiate, participate in or otherwise facilitate any negotiations, inquiries or discussions with respect to any such Person access offer, indication or proposal to the acquire all or more than 15% of its business, propertiesassets or capital shares whether by merger, consolidation, other business combination, purchase of assets, booksreorganization, records tender or other non-public information, exchange offer or to any personnel, otherwise (each of the Company and its Subsidiariesforegoing, an "ACQUISITION PROPOSAL") or (ii) disclose, in any such case connection with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse any information or recommend provide access to its properties, books or records, except as required by law or pursuant to a governmental request for information. The Company will immediately cease and cause to be terminated any proposal that constitutes existing activities, discussions or would reasonably be expected negotiations with any parties conducted heretofore with respect to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing. The Company will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of Section 5.4(a) hereof of the obligations undertaken in this Section 5.4. The Company also will promptly request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company and/or any of its Subsidiaries to return or destroy all confidential information heretofore furnished to such person by or on behalf of the Company.
(b) Notwithstanding anything to the contrary contained in Section 4.1(a)5.4(a) or elsewhere in this Agreement, prior to the Effective Time, the Stockholders and their Representatives Company may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after with, and furnish non-public information, and afford access to the properties, books, records, officers, employees and representatives of the Company to any Person, entity or group if such Person, entity or group has delivered to the Company, prior to the date of the Company Stockholders Meeting or the Written Consent, as applicable, and in writing, an Acquisition Proposal which the Company Board in its good faith reasonable judgment determines if consummated would be more favorable, from a financial point of view, to the Company's stockholders than the transactions contemplated by this Agreement, if and which determination may be made only to after the extent Company Board (i) receives advice of its legal counsel that the Company Board would breach its fiduciary duties if it did not accept the Acquisition Proposal and (acting upon the recommendation ii) an opinion of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes advisors to the effect that the Acquisition Proposal is superior, from a financial point of view, to the Company's stockholders than the transactions contemplated by this Agreement (a "SUPERIOR PROPOSAL"). In the event the Company receives a Superior Proposal Proposal, nothing contained in this Agreement (but subject to the terms of this paragraph (b)) will prevent the Company Board from executing or is reasonably likely entering into an agreement relating to result in a such Superior Proposal and recommending such Superior Proposal to its stockholders, if the Company Board determines in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with preceding sentence that its fiduciary duties under applicable Law.
(c) From require it to do so; in such case, the date hereof until the earlier Company Board may withdraw, modify or refrain from making its recommendation of the termination of the Merger Agreement pursuant to Article VIII thereof and Merger; PROVIDED, HOWEVER that the Company Merger Effective Timeshall (i) promptly notify Parent, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, and in any eventevent within 24 hours, within forty-eight (48) hours) notify Parent in writing following if any such Acquisition Proposal is received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or negotiations with continued with, the Company or any Person or Group pursuant to Section 4.1(b) and shall provideof its Subsidiaries, indicating, in connection with such notice, (x) the identity name of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of person and the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal, (ii) provide Parent at least 48 hours prior written notice of the Company's intention to execute or enter into an agreement relating to such Superior Proposal and (iii) terminate this Agreement by written notice to Parent provided no sooner than 48 hours after Parent's receipt of a copy of such Superior Proposal (or a description of the status of any such or discussions or negotiationssignificant terms and conditions thereof). Notwithstanding anything to the foregoingcontrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Stockholders shall not be required Company may, in connection with a possible Acquisition Proposal, refer any third party to notify Parent this Section 5.4 and Section 7.2(b) and make a copy of any discussions or negotiations this Section 5.4 and Section 7.2(b) available to the extent the Company has notified Parent thereofa third party.
Appears in 2 contracts
Sources: Merger Agreement (Vlsi Technology Inc), Merger Agreement (Vlsi Technology Inc)
Acquisition Proposals. From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, each Seller agrees that such Seller will not, (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timesolicit, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
(1) initiate, solicitseek, propose entertain, encourage, facilitate, support or knowingly encourage induce the making, submission or knowingly facilitate announcement by any inquiries or the making Person of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to the acquisition by any Person (other than Buyer and its Affiliates) of any of the Purchased Interests or the Other Interests, (b) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these exclusivity provisions) or negotiations regarding, or deliver or make available to any Person any information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to acquisition by any Person (other than Parent Buyer and its Affiliates) of any of the Purchased Interests or any of its Affiliatesthe Other Interests, (c) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the businessagree to, propertiesaccept, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes transaction related to the acquisition by any Person (other than Buyer and its Affiliates) of the Purchased Interests or would reasonably be expected to lead tothe Other Interests, an Acquisition Proposal;
or (5d) enter into any Alternative Acquisition Agreement; or
letter of intent or any other contract contemplating or otherwise relating to the acquisition by any Person (6other than Buyer and its Affiliates) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to Purchased Interests or the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after Other Interests. As of the date of this Agreement, if each Seller agrees to (i) immediately cease and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected cause to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in terminated any event, within forty-eight (48) hours) notify Parent in writing following any existing discussions or negotiations with any Person (other than Buyer or Group its Affiliates) conducted prior to the date hereof with respect to the acquisition by any Person (other than Buyer and its Affiliates) of the Purchased Interests or the Other Interests, (ii) notify each other Person with whom it was engaged in ongoing discussions or negotiation with respect to the Purchased Interests immediately prior to the date hereof that it has entered into a binding agreement relating to the sale of the Purchased Interests, and (iii) terminate any negotiations or discussions under any confidentiality, non-disclosure, document and information access and/or other agreements (other than any such agreement with Buyer and/or its Affiliates) with respect to the sale of the Purchased Interests and the Other Interests. Notwithstanding anything to the contrary contained herein, nothing contained herein is intended to, or shall serve to, prevent (i) any Bridge Equity Provider from exercising or otherwise limit its right of first offer under Section 4.02 of the Bridge Equity Providers Agreement, or (ii) any action by Sellers that Sellers, in their reasonable judgment, determine that they are required to perform pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) their obligations under the identity of Bridge Equity Providers Agreement or the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofSyndicaton Agreement.
Appears in 2 contracts
Sources: Interest Purchase Agreement, Interest Purchase Agreement (Erp Operating LTD Partnership)
Acquisition Proposals. (a) From Subject to the provisions of this Section 4.03 and after Schedule 4.03, from the date hereof until the earlier of Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, neither the Merger Agreement pursuant to Article VIII thereof Company nor any of the Company Subsidiaries shall, and the Company Merger Effective Time, subject to Section 8, each of shall cause its and the Stockholders hereby agrees that it shall not, and it shall instruct and use Company Subsidiaries’ respective Representatives on its reasonable best efforts to direct its Representatives behalf not to, directly or indirectly:
, (1A) initiate, solicit, propose or knowingly encourage initiate or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, encourage any Acquisition Proposal or any inquiry, proposal inquiries or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or proposals that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
, (5B) other than informing Persons of the provisions contained in this Section 4.03, enter into or participate in any substantive discussions or negotiations with, any Third Party regarding any Acquisition Proposal or any inquiries or proposals that could reasonably be expected to lead to an Acquisition Proposal, (C) furnish any confidential information of or access to the properties, books, records or personnel of the Company or the Company Subsidiaries to, any Third Party that has made, or informs the Company that it is considering making, an Acquisition Proposal, or (D) enter into any Alternative letter of intent, memorandum of understanding, merger agreement, asset or stock purchase or other acquisition agreement or other contract or agreement relating to an Acquisition Proposal or requiring the Company to abandon or terminate its obligations under this Agreement; or
, (6other than a confidentiality agreement as contemplated by Section 4.03(b)) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything in this Section 4.03 to the contrary contrary, at any time prior to obtaining the Company Stockholder Approval, in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written response to (i) an Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board determines in good faith constitutes, or could reasonably be expected to lead to, a Superior Proposal, or (acting upon ii) an inquiry relating to an Acquisition Proposal by a Third Party that the Company Board determines in good faith is credible and reasonably capable of making a Superior Proposal (an “Inquiry”), the Company, directly or indirectly through its Representatives, may (x) engage in negotiations or discussions with such Third Party and its Representatives and/or (y) furnish to such Third Party or its Representatives information relating to the Company or any Company Subsidiary and access to the properties, books, records or personnel of the Company and the Company Subsidiaries, in each case, pursuant to an Acceptable Confidentiality Agreement; provided that, without any determination of the Company Board set forth in Section 4.03(b)(i) or (ii), the Company may have discussions with any Third Party that has made an Acquisition Proposal or Inquiry solely in order to clarify and understand the terms and conditions of such Acquisition Proposal or Inquiry and the ability of such third party to consummate a Superior Proposal; provided further that the Company shall make available to Parent any material information relating to the Company or the Company Subsidiaries that is made available to such Third Party which was not previously made available to Parent at substantially the same time it is made available to such Third Party.
(c) The Company shall notify Parent promptly (and, in any event, within twenty-four (24) hours) after receipt by the Company of any Acquisition Proposal or Inquiry, which notice shall identify the material terms and conditions of, any such Acquisition Proposal or Inquiry and shall include a copy (if in writing) of all written materials and correspondence provided by such Person in connection with the Acquisition Proposal or Inquiry or modification or amendment of any such Acquisition Proposal or Inquiry. The Company shall thereafter keep Parent reasonably informed of any material developments regarding any such Acquisition Proposal or Inquiry.
(d) Except as expressly permitted by this Section 4.03(d) and Section 4.03(e), neither the Company Board nor any committee thereof shall (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the recommendation by the Company Board of this Agreement to the Company Stockholders or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend any Acquisition Proposal (each such action, an “Adverse Recommendation Change”). Notwithstanding the foregoing, the Company Board or any committee thereof may, in response to a Superior Proposal, (i) make an Adverse Recommendation Change or (ii) terminate this Agreement pursuant to Section 8.01(d)(i) if and only if each of the Special Committeefollowing conditions are satisfied:
(i) the Company has provided to Parent at least five (5) days’ prior notice of its intent to take such action (which notice shall include a copy of the most current draft of any agreement, understanding or term sheet with respect to such Superior Proposal, and identify the Special Committee Person making such Superior Proposal) (such notice being referred to herein as “Superior Proposal Notice”) (it being understood and agreed that any such Superior Proposal Notice shall not in itself be deemed an Adverse Recommendation Change);
(ii) if requested to do so by Parent the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during the period starting on the first (1st) day following Parent’s receipt of the Superior Proposal Notice and ending at 11:59 p.m. Houston, Texas time on the fifth (5th) day following such receipt (such period, a “Superior Proposal Notice Period”), any changes or modifications to the terms of this Agreement that Parent proposes to make; and
(iii) at the end of such Superior Proposal Notice Period, the Company Board shall have determined in good faith based on the information then available and faith, after consultation with its financial advisor advisors and outside counsel either taking into account any changes or modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, that such Acquisition Proposal still constitutes a Superior Proposal Proposal. The parties agree that any amendment to the price or is reasonably likely other material amendment to result in the terms of a Superior Proposal following the delivery of a Superior Proposal Notice in accordance respect of such Superior Proposal shall require delivery of another Superior Proposal Notice to which the provisions of clauses (i), (ii) and (iii) of this Section 4.03(d) shall apply mutatis mutandis except that, in the case of such other Superior Proposal Notice, any references to five (5) days or fifth (5th) day in such clauses shall be deemed to be two (2) days or third (3rd) day, respectively.
(e) Notwithstanding anything to contrary in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or a duly authorized committee thereof) may, in response to an Intervening Event, make an Adverse Recommendation Change if the Company Board has determined in good faith, after consultation with its legal counsel, that failure to make an Adverse Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law and (i) the Merger Agreement and the failure Company has provided to Parent at least five (5) days’ prior notice of its intent to take such action action, which notice shall provide a reasonably detailed description of the Intervening Event (such notice being referred to herein as an “Intervening Event Notice”) (it being understood and agreed that any such Intervening Event Notice shall not in itself be deemed an Adverse Recommendation Change); (ii) if requested to do so by Parent, the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during the period starting on the first (1st) Business Day following Parent’s receipt of the Intervening Event Notice and ending at 11:59 p.m. Houston, Texas time on the fifth (5th) day following such receipt (such period, an “Intervening Event Notice Period”), any changes or modifications to the terms of this Agreement that Parent proposes to make; and (iii) at the end of such Intervening Event Notice Period, the Company Board (or a duly authorized committee thereof) shall have determined in good faith, after consultation with its legal counsel and taking into account any changes or modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, that failure to make an Adverse Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(cf) From Notwithstanding anything in this Agreement to the date hereof until contrary, any factually accurate public statement by the earlier Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, shall not be deemed to be a recommendation of such Acquisition Proposal or the withdrawal, amendment or modification of the termination recommendation of the Merger Company Board in favor of this Agreement and the Merger. Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) taking and disclosing to the Company Stockholders a position required by Rule 14e-2(a) or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act; (ii) making any disclosure to the Company Stockholders if the Company Board determines after consultation with its legal counsel, that the failure to make such disclosure would be reasonably be expected to be inconsistent with Applicable Law, (iii) informing any Person of the existence of the provisions contained in this Agreement or (iv) making any “stop, look and listen” communication to the Company Stockholders pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communication to the Company Stockholders). No disclosures under this Section 4.03(f) shall be, in themselves, a basis for Parent to terminate this Agreement pursuant to Article VIII thereof and 8. Any action permitted to be taken by the Company Merger Effective Time, subject pursuant to Section 8, each Stockholder (solely in its capacity as 4.03 shall not constitute a stockholder breach of the Company’s representations, warranties, covenants or agreements contained in this Agreement.
(g) agrees that it will promptly (and, As used in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.this Agreement,
Appears in 1 contract
Acquisition Proposals. (a) From and after Except as otherwise expressly provided in Section 6.5, during the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8Interim Period, each of the Stockholders hereby Starwood Waypoint and Invitation Homes agrees that it shall not, and it shall instruct cause each of its Subsidiaries and use its reasonable best efforts to direct its and their Representatives not to, directly or indirectly:
, (1i) solicit, initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries inquiry, discussion, proposal, offer or the making of any proposal or offer request that constitutes, or would could reasonably be expected to lead to, any an Acquisition Proposal;
Proposal (2an “Inquiry”), (ii) engage inengage, continue or otherwise participate in any discussions or negotiations regarding, or provide furnish to any Third Party any non-public information in connection with, or data to facilitate in any Person or Group relating toway any effort by, any Third Party in furtherance of, any Acquisition Proposal or Inquiry or (iii) approve or enter into any inquiryletter of intent, proposal memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement or offer that would reasonably be expected to lead option agreement or similar agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to an Acquisition Proposal or requiring Starwood Waypoint or Starwood Waypoint LP, on the one hand, or Invitation Homes or Invitation Homes LP, on the other hand, to abandon, terminate or fail to consummate the transactions contemplated by this Agreement (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating the foregoing agreements referred to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement ofthis clause (iii), an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any “Alternative Acquisition Agreement; or
”) or (6iv) authorize, resolve, propose or agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a6.5(a), so long as such Party has not breached its obligations under this Section 6.5, at any time prior to obtaining the Stockholders and their Representatives may engage Starwood Waypoint Shareholder Approval or the Invitation Homes Stockholder Approval, as applicable, each of Starwood Waypoint or Invitation Homes may, directly or indirectly through any Representative, in or otherwise participate in discussions or negotiations regarding a response to an unsolicited bona fide written Acquisition Proposal received by a Third Party made after the date of this Agreement, if (i) furnish non-public information to such Third Party (or its Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, Starwood Waypoint or Invitation Homes, as applicable, receives from the Third Party an executed Acceptable Confidentiality Agreement and only provides the other with a copy of such agreement within twenty-four (24) hours of execution of such agreement and (B) any non-public information concerning the Starwood Waypoint Entities or the Invitation Homes Entities, as applicable, that is provided to such Third Party shall, to the extent that not previously provided to the Company other Parties, be provided to the other Parties prior to or simultaneously with such information being provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party and its Representatives with respect to the Acquisition Proposal if, in the case of each of clauses (i) and (ii), the Starwood Waypoint Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined Invitation Homes Board, as applicable, determines in good faith based on the information then available and faith, after consultation with its outside legal counsel and financial advisor and outside counsel either constitutes a Superior advisors, that such Acquisition Proposal constitutes, or is reasonably likely expected to result in in, a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable LawProposal.
(c) From Each of Starwood Waypoint and Invitation Homes shall notify the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will other Party promptly (andbut in no event later than twenty-four (24) hours after receipt of any Acquisition Proposal, in any eventrequest for non-public information relating to such Party or its Subsidiaries from any Person that informs any Starwood Waypoint Entity or Invitation Homes Entity, within forty-eight (48) hours) notify Parent in writing following as applicable, or any of its Representatives that such Person is considering making, or has made, an Acquisition Proposal, or any Inquiry from any Person seeking to have discussions or negotiations with any Person Starwood Waypoint Entity or Group pursuant Invitation Homes Entity, as applicable, or any of its Representatives relating to Section 4.1(b) a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall provide, in connection with such notice, (x) indicate the identity of the Person Third Party making the Acquisition Proposal or Group making such proposal (unless such disclosure is prohibited pursuant to Inquiry and the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the financial and other material terms and conditions of any such Acquisition Proposal andProposals or Inquiries (including providing copies of any written Inquiries, if requests or Acquisition Proposals and any drafts and final versions of agreements, commitment letters and related documentation and correspondence). Each of Starwood Waypoint and Invitation Homes shall also promptly, and in any event within twenty-four (24) hours, notify the other orally and in writing, a copy thereof (x) if any Starwood Waypoint Entity or Invitation Homes Entity, as applicable, or any of such Party’s Representatives enters into discussions or negotiations concerning any Acquisition Proposal or provides non-public information to any Person in accordance with Section 6.5(b) and thereafter (y) of any change to the financial or other terms of any Acquisition Proposal. Each of Starwood Waypoint and Invitation Homes shall otherwise keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), the other reasonably informed of the status and terms of any such discussions, negotiations or Acquisition Proposal Proposals on a current basis (and the status in any event within twenty-four (24) hours of any such or material developments, discussions or negotiations), including by providing copies of any written Inquiries, requests or Acquisition Proposals and any drafts and final versions of agreements, commitment letters and related documentation or correspondence. Notwithstanding No Starwood Waypoint Entity or Invitation Homes Entity shall, after the date of this Agreement, enter into any confidentiality or similar agreement that would prohibit it from providing any of the foregoing information to the other Parties.
(d) Except as permitted by this Section 6.5(d), neither the Starwood Waypoint Board, the Invitation Homes Board, nor any committee of either such board, shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to the other Party, the Starwood Waypoint Recommendation or the Invitation Homes Recommendation, as applicable, or make any other public statement in connection with the Starwood Waypoint Shareholder Meeting or Invitation Homes Stockholder Meeting, as applicable, by or on behalf of such Party’s board or a committee thereof that would reasonably be expected to have the same effect as the foregoing, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Stockholders Starwood Waypoint Recommendation or the Invitation Homes Recommendation, as applicable, in the Disclosure Document or any filing, amendment or supplement relating to the Disclosure Document, (iv) fail to publicly recommend against any tender or exchange offer that constitutes an Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by Starwood Waypoint’s shareholders or Invitation Homes’ stockholders) within ten (10) Business Days after it is launched (or such fewer number of days as remain prior to the Starwood Waypoint Shareholder Meeting or the Invitation Homes Stockholder Meeting, as applicable, as it may be adjourned or postponed), or (v) fail to publicly reaffirm without qualification the Starwood Waypoint Recommendation or the Invitation Homes Recommendation, as applicable, in each case, within three (3) Business Days after the written request of the other Party following an Acquisition Proposal that has been publicly announced (or such fewer number of days as remain prior to the Starwood Waypoint Shareholder Meeting or the Invitation Homes Stockholder Meeting, as applicable, as it may be adjourned or postponed) (any of the actions described in clauses (i), (ii), (iii), (iv), or (v) of this Section 6.5(d), a “Starwood Waypoint Adverse Recommendation Change” or a “Invitation Homes Adverse Recommendation Change”, respectively), or (vi) approve, adopt or recommend (or agree to or propose to approve, adopt or recommend), or cause or permit Starwood Waypoint or Invitation Homes, as applicable, or any of their respective Subsidiaries to enter into an Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Starwood Waypoint Shareholder Approval or the Invitation Homes Stockholder Approval, as applicable, if the Starwood Waypoint Board or the Invitation Homes Board, as applicable, has received an unsolicited bona fide Acquisition Proposal (and Starwood Waypoint or Invitation Homes, as applicable, has not breached Section 6.5) that, in the good-faith determination of the applicable board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with Section 6.5(e), and giving effect to all of the changes, revisions, modifications and adjustments which may be offered by Starwood Waypoint or Invitation Homes, as applicable, pursuant to Section 6.5(e) or otherwise , then in such case, Starwood Waypoint or Invitation Homes, as applicable, may terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(d)(i) in order to enter into an Alternative Acquisition Agreement providing for implementation of such Superior Proposal and, in connection therewith, the Starwood Waypoint Board or the Invitation Homes Board, as applicable, may make an Invitation Homes Adverse Recommendation Change or a Starwood Waypoint Adverse Recommendation Change, as applicable, provided (x) the terminating Party shall not pay or cause to be paid to Starwood Waypoint or Invitation Homes, as applicable, the Termination Fee and Expense Amount required to notify Parent be paid pursuant to Section 8.3 in connection with such termination and (y) neither such terminating Party nor any Subsidiary or Representative thereof shall enter into any such Alternative Acquisition Agreement unless this Agreement has been or is concurrently terminated in accordance with its terms.
(e) No Invitation Homes Entity shall be entitled to effect an Invitation Homes Adverse Recommendation Change and no Starwood Waypoint Entity shall be entitled to effect a Starwood Waypoint Adverse Recommendation Change pursuant to Section 6.5(d) or to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(d)(i), respectively, unless (i) such Party (the “notifying party”) has provided prior written notice (a “Notice of any discussions Adverse Recommendation Change”) to Starwood Waypoint or negotiations Invitation Homes, as applicable (the “recipient party”) that the Starwood Waypoint Board or the Invitation Homes Board, as applicable, intends to take such action, identifying the Person making such Superior Proposal and specifying in reasonable detail the reasons therefor and, in the case of a Starwood Waypoint Adverse Recommendation Change or an Invitation Homes Adverse Recommendation Change, as applicable, describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that is the basis of such action (including copies of the current drafts of all agreements, commitment letters and other documentation and correspondence that relate to such Superior Proposal), (ii) during the five (5) Business Day period following the recipient party’s receipt of the Notice of Adverse Recommendation Change, the notifying party shall, and shall cause its Representatives to, negotiate with the recipient party (and its Representatives) in good faith (to the extent the Company has notified Parent thereofrecipient party requests to negotiate) to make such changes, revisions, modifications and adjustments in the terms and conditions of this Agreement, so that such Superior Proposal ceases to constitute a Superior Proposal, and (iii) following the end of such five (5) Business Day period, the Starwood Waypoint Board or the Invitation Homes Board, as applicable, shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes, revisions, modifications and adjustments which may be offered by the recipient party in response to the Notice of Adverse Recommendation Change or otherwise, that the Superior Proposal giving rise to the Notice of Adverse Recommendation Change continues to constitute a Superior Proposal. Any change to the financial terms or any change in any material respect to any of the other terms of such Superior Proposal shall require a new Notice of Adverse Recommendation Change, the Party required to deliver such new Notice of Adverse Recommendation Change shall again comply with the provisions of this Section 6.5(e), and the provisions of this Section 6.5(e) shall apply to such amended Superior Proposal.
(f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit Starwood Waypoint or the Starwood Waypoint Board, or Invitation Homes or the Invitation Homes Board, from (i) taking and disclosing to Starwood Waypoint’s shareholders or to Invitation Homes’ stockholders, as applicable, a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or (ii) making a “stop, look and listen” or similar communication to the holders of Starwood Waypoint Common Shares or Invitation Homes Common Stock of the type contemplated by Rule 14d-9(f) under the Exchange Act, so long as in the case of clauses (i) and (ii) (A) any such disclosure includes the Starwood Waypoint Board Recommendation or Invitation Homes Board Recommendation, as applicable, without any modification or qualification thereof or continues the prior recommendation of the Starwood Waypoint Board or Invitation Homes Board, as the case may be, and (B) any such disclosure does not contain either an express Starwood Waypoint Adverse Recommendation Change or an Invitation Homes Adverse Recommendation Change, as applicable, or any other statements by or on behalf of the Starwood Waypoint Board or the Invitation Homes Board, as the case may be, which would reasonably be expected to have the same effect as a Starwood Waypoint Adverse Recommendation Change or an Invitation Homes Adverse Recommendation Change, as applicable; provided, however, the foregoing Section 6.5(f) shall not permit the Starwood Waypoint Board or the Invitation Homes Board to make any Starwood Waypoint Adverse Recommendation Change or Invitation Homes Adverse Recommendation Change, respectively, except as permitted by Section 6.5(d) and Section 6.5(e); provided, further, that neither Starwood Waypoint or the Starwood Waypoint Board or Invitation Homes or the Invitation Homes Board shall be permitted to recommend that the shareholders of Starwood Waypoint or the stockholders of Invitation Homes, as the case may be, tender any securities in connection with any tender offer or exchange offer that is an Acquisition Proposal or effect a Starwood Waypoint Adverse Recommendation Change or an Invitation Homes Adverse Recommendation Change, as applicable, with respect thereto, except as permitted by Section 6.5(d).
(g) Upon execution of this Agreement, each of Starwood Waypoint and Invitation Homes shall, and shall cause each of its Subsidiaries, and its and their Representatives to (i) immediately cease any solicitations, discussions, negotiations, communications or other activities with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which any Starwood Waypoint Entity or Invitation Homes Entity, as applicable, is a party or of which any Starwood Waypoint Entity or Invitation Homes Entity, as applicable, is a beneficiary. Each of Starwood Waypoint and Invitation Homes shall use reasonable best efforts to cause all Third Parties who have been furnished confidential information regarding any Starwood Waypoint Entity or Invitation Homes Entity, as applicable, in connection with the solicitation of or discussions regarding an Acquisition Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information. Each Party shall not, and shall not permit any of its Subsidiaries to, terminate, waive, amend or modify any provi
Appears in 1 contract
Acquisition Proposals. From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, each Seller agrees that such Seller will not, (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timesolicit, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
(1) initiate, solicitseek, propose entertain, encourage, facilitate, support or knowingly encourage induce the making, submission or knowingly facilitate announcement by any inquiries or the making Person of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to the acquisition by any Person (other than Buyer and its Affiliates) of any of the Purchased Interests or the Other Interests, (b) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these exclusivity provisions) or negotiations regarding, or deliver or make available to any Person any information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to acquisition by any Person (other than Parent Buyer and its Affiliates) of any of the Purchased Interests or any of its Affiliatesthe Other Interests, (c) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the businessagree to, propertiesaccept, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes transaction related to the acquisition by any Person (other than Buyer and its Affiliates) of the Purchased Interests or would reasonably be expected to lead tothe Other Interests, an Acquisition Proposal;
or (5d) enter into any Alternative Acquisition Agreement; or
letter of intent or any other contract contemplating or otherwise relating to the acquisition by any Person (6other than Buyer and its Affiliates) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to Purchased Interests or the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after Other Interests. As of the date of this Agreement, if each Seller agrees to (i) immediately cease and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected cause to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in terminated any event, within forty-eight (48) hours) notify Parent in writing following any existing discussions or negotiations with any Person (other than Buyer or Group pursuant its Affiliates) conducted prior to Section 4.1(bthe date hereof with respect to the acquisition by any Person (other than Buyer and its Affiliates) and shall provide, in connection with such noticeof the Purchased Interests or the Other Interests, (xii) notify each other Person with whom it was engaged in ongoing discussions or negotiation with respect to the identity Purchased Interests immediately prior to the date hereof that it has entered into a binding agreement relating to the sale of the Person Purchased Interests, and (iii) terminate any negotiations or Group making discussions under any confidentiality, non-disclosure, document and information access and/or other agreements (other than any such proposal (unless such disclosure is prohibited pursuant agreement with Buyer and/or its Affiliates) with respect to the terms of any confidentiality agreement with such Person or Group that is in effect sale of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal Purchased Interests and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofOther Interests.
Appears in 1 contract
Sources: Interest Purchase Agreement (Lehman Brothers Holdings Inc)
Acquisition Proposals. (a) From The Company and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall its Subsidiaries will not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
indirectly through their respective officers, directors, employees, representatives and agents, (1i) initiate, solicitfacilitate, propose or knowingly encourage or knowingly facilitate any inquiries or solicit the making of any proposal Acquisition Proposal (as hereinafter defined) or offer that constitutes(ii) except as permitted below, engage in negotiations or discussions with, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide furnish any non-public information or data to any Person or Group relating to, any third party relating to an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the approval of the Merger by the Company's stockholders the Company and the Board (i) may participate in negotiations or discussions (including, as a part thereof, making any counterproposal) with or furnish information to any third party that delivers a written Acquisition Proposal to the Company which was not solicited or any inquiryencouraged after the date hereof if the Board determines in good faith, proposal after consultation with its outside counsel, that the failure to participate in such discussions or offer that would negotiations or to furnish such information could reasonably be expected to lead constitute a breach of the Board's fiduciary duties under applicable law and (ii) without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall be permitted to (x) take and disclose to the Company's stockholders a position with respect to the Merger or another Acquisition Proposal, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its outside counsel, that the failure to take such action could reasonably be expected to constitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. The Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation ("AES") conducted heretofore with respect to an Acquisition Proposal.
(b) The Company shall promptly advise Parent in writing of any inquiries or proposals relating to an Acquisition Proposal and any actions taken pursuant to Section 6.2(a) (including the material terms thereof and the identity of the other than parties involved).
(c) Any action by the Board pursuant to state that the terms second sentence of Section 6.2(a) shall not change the approval of the Board with respect to this Agreement for purposes of Section 203 of the DGCL.
(d) For purposes of this Section 4.1 prohibit such discussions);
(3) furnish to Agreement, "Acquisition Proposal" shall mean any Person (other than Parent or any of its Affiliates) any non-public information proposal made by a third party relating to (i) a merger, recapitalization, share exchange, consolidation, business combination, sale of shares of capital stock or securities convertible into or exercisable or exchangeable for capital stock, tender offer or exchange offer or similar transaction involving the Company including, without limitation, any single or multi-step transaction or series of related transactions or, (ii) the acquisition of any material portion of its Subsidiaries the business or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, assets of the Company and its SubsidiariesSubsidiaries or (iii) any public announcement of a proposal, in any such case with the intent to induce, plan or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit intention to do any of the foregoing.
(b) Notwithstanding anything , in each case other than the transactions contemplated by this Agreement and other than the transactions related to the contrary Company's disposition of its interest in Section 4.1(a), the Stockholders and their Representatives may engage in Tiger Bay project partnership to Florida Power Corporation or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawaffiliates.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 1 contract
Sources: Merger Agreement (Destec Energy Inc)
Acquisition Proposals. (a) From The Company and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall its Subsidiaries will not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
indirectly through their respective officers, directors, employees, representatives and agents, (1i) initiate, solicitfacilitate, propose or knowingly encourage or knowingly facilitate any inquiries or solicit the making of any proposal Acquisition Proposal (as hereinafter defined) or offer that constitutes(ii) except as permitted below, engage in negotiations or discussions with, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide furnish any non-public information or data to any Person or Group relating to, any third party relating to an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the approval of the Merger by the Company's stockholders the Company and the Board (i) may participate in negotiations or discussions (including, as a part thereof, making any counterproposal) with or furnish information to any third party that delivers a written Acquisition Proposal to the Company which was not solicited or any inquiryencouraged after the date hereof if the Board determines in good faith, proposal after consultation with its outside counsel, that the failure to participate in such discussions or offer that would negotiations or to furnish such information could reasonably be expected to lead constitute a breach of the Board's fiduciary duties under applicable law and (ii) without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall be permitted to (x) take and disclose to the Company's stockholders a position with respect to the Merger or another Acquisition Proposal, or amend or with- draw such position, pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its outside counsel, that the failure to take such action could reasonably be expected to constitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. The Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation ("AES") conducted heretofore with respect to an Acquisition Proposal.
(b) The Company shall promptly advise Parent in writing of any inquiries or proposals relating to an Acquisition Proposal and any actions taken pursuant to Section 6.2(a) (including the material terms thereof and the identity of the other than parties involved).
(c) Any action by the Board pursuant to state that the terms second sentence of Section 6.2(a) shall not change the approval of the Board with respect to this Agreement for purposes of Section 203 of the DGCL.
(d) For purposes of this Section 4.1 prohibit such discussions);
(3) furnish to Agreement, "Acquisition Proposal" shall mean any Person (other than Parent or any of its Affiliates) any non-public information proposal made by a third party relating to (i) a merger, recapitalization, share exchange, consolidation, business combination, sale of shares of capital stock or securities convertible into or exercisable or exchangeable for capital stock, tender offer or exchange offer or similar transaction involving the Company including, without limitation, any single or multi-step transaction or series of related transactions or, (ii) the acquisition of any material portion of its Subsidiaries the business or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, assets of the Company and its SubsidiariesSubsidiaries or (iii) any public announcement of a proposal, in any such case with the intent to induce, plan or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit intention to do any of the foregoing.
(b) Notwithstanding anything , in each case other than the transactions contemplated by this Agreement and other than the transactions related to the contrary Company's disposition of its interest in Section 4.1(a), the Stockholders and their Representatives may engage in Tiger Bay project partnership to Florida Power Corporation or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawaffiliates.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 1 contract
Sources: Merger Agreement (NGC Corp)
Acquisition Proposals. (a) From The Company shall, and shall cause its Affiliates, Subsidiaries, and its and each of their respective officers, directors, employees, consultants, financial advisors, attorneys, accountants and other advisors, representatives and agents (collectively, "Representatives") to, immediately cease and cause to be immediately terminated any discussions or negotiations with any parties that may be ongoing with respect to, or that are intended to or could reasonably be expected to lead to, a Takeover Proposal. The Company shall not, and shall cause its Affiliates, Subsidiaries and its and their respective Representatives not to, (i) directly or indirectly solicit, initiate, encourage or take any other action to facilitate (including by way of furnishing or disclosing information) any Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal (including any letter of intent, memorandum of understanding or agreement in principle) or enter into any agreement, arrangement or understanding (including any letter of intent, memorandum of understanding or agreement in principle) which requires, or is intended to or which could reasonably be expected to result in, the abandonment, termination or the failure to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to any Takeover Proposal or (iv) grant any waiver or release under any standstill or any similar agreement with respect to any class of the Company's equity securities; provided, however, that at any time prior to the adoption of this Agreement by the Required Company Stockholders, in response to a bona fide written unsolicited Takeover Proposal received after the date hereof until that the earlier Board of Directors of the termination Company determines in good faith (after consultation with outside counsel and a financial advisor of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
(1nationally recognized reputation) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition a Superior Proposal;
, and which Takeover Proposal was not, directly or indirectly, the result of a breach of this Section 5.5, the Company may, if its Board of Directors determines in good faith (2after consulting with a financial advisor of nationally recognized reputation and outside counsel) engage inthat it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, continue and subject to compliance with Section 5.5(b), (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided that all such information has previously been provided to Buyer or otherwise is provided to Buyer prior to or concurrently with the time it is provided to such Person, and (y) participate in any discussions or negotiations regardingwith the Person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.
(b) Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to Buyer), or provide propose to withdraw (or modify in a manner adverse to Buyer), the approval, recommendation or declaration of advisability by such Board of Directors or any non-public information such committee thereof of, this Agreement, the Merger or data the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose to any Person recommend, adopt or Group relating toapprove, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal (other than any action described in this clause (i) being referred to state that the terms of this Section 4.1 prohibit such discussions);
as a "Company Adverse Recommendation Change") or (3ii) furnish approve or recommend, or propose to any Person (other than Parent approve or any of its Affiliates) any non-public information relating to recommend, or allow the Company or any of its Subsidiaries to execute or afford to enter into, any such Person access to the businessletter of intent, propertiesmemorandum of understanding, assetsagreement in principle, booksmerger agreement, records acquisition agreement, option agreement, joint venture agreement, partnership agreement or other non-public information, agreement constituting or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to inducerelated to, or that could reasonably be expected is intended to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in and as permitted by Section 5.5(a)) (an "Acquisition Proposal;Agreement") or which is intended to or which could reasonably be expected to result in the abandonment, termination or failure to consummate the Merger or any other transaction contemplated by this Agreement. Notwithstanding the foregoing, at any time prior to the adoption of this Agreement by the Required Company Stockholders, the Board of Directors of the Company may make a Company Adverse Recommendation Change in response to a Superior Proposal if such Board of Directors determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that (i) no such Company Adverse Recommendation Change may be made if the Company failed to comply with this Section 5.5, (ii) no such Company Adverse Recommendation Change shall be made until after the third (3rd) Business Day following Buyer's receipt of written notice (a "Notice of Adverse Recommendation") from the Company advising Buyer that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new three (3) Business Day period) and representing that the Company has complied with this Section 5.5, (iii) during such three (3) Business Day period, the Company shall negotiate with Buyer in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and not make a Company Adverse Recommendation Change and (iv) the Company shall not make a Company Adverse Recommendation Change if, prior to the expiration of such three (3) Business Day period, Buyer makes a proposal to adjust the terms and conditions of this Agreement that the Company's Board of Directors determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal after giving effect to, among other things, the payment of the Termination Fee set forth in Section 7.3 hereof.
(5c) enter into The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.5, promptly on the date of receipt thereof, the Company shall advise Buyer orally and in writing of any Alternative Acquisition Agreement; or
request for information or any Takeover Proposal, or any inquiry, discussions or negotiations with respect to any Takeover Proposal and the terms and conditions of such request, Takeover Proposal, inquiry, discussions or negotiations (6including the identity of the Person making such Takeover Proposal) authorize, resolve, agree or commit and the Company shall promptly provide to do Buyer copies of any written materials received by the Company in connection with any of the foregoing.
(b) Notwithstanding anything to , and the contrary in Section 4.1(a)identity of the Person or group making any such request, the Stockholders and their Representatives may engage in Takeover Proposal or otherwise participate in inquiry or with whom any discussions or negotiations regarding a bona fide written Acquisition Proposal received after are taking place; provided, however, that the date Company shall not be required to disclose the identity of this Agreementthe Person or group making such request, if and only Takeover Proposal, inquiry or with whom any discussions or negotiations are taking place to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes is prohibited from making such disclosure pursuant to a Superior Proposal or is reasonably likely confidentiality agreement entered into prior to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the this Agreement. The Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly shall keep Buyer fully informed of the status and details (andincluding amendments or proposed amendments) of any such request, in Takeover Proposal or inquiry and keep Buyer fully informed as to the details of any event, within forty-eight (48) hours) notify Parent in writing following any information requested of or provided by the Company and as to the details of all discussions or negotiations with any Person or Group pursuant respect to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition request, Takeover Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders inquiry.
(d) Nothing contained in this Section 5.5 shall not be required to notify Parent of any discussions or negotiations to the extent prohibit the Company has notified Parent thereoffrom taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act; provided, however, that in no event shall the Company or its Board of Directors or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.5(b).
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof of this Agreement until the earlier of (x) the termination of the Merger Agreement pursuant to Article VIII thereof and (y) the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it Series A Holders shall not, (a) notify the Company as promptly as reasonably practicable under the circumstances (and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly in any event within thirty-six (36) hours) after receipt by any Series A Holder (or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making Representative of any Series A Holder) of any inquiry, communication, offer, proposal or offer request that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal (or any amendment, modification or supplement to any Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit the receipt of which by the Company otherwise would obligate the Company to do any notify Parent pursuant to Section 5.03 of the foregoing.
Merger Agreement, (b) Notwithstanding anything confirm to the contrary in Section 4.1(a)maker of any Acquisition Proposal, the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting promptly upon the recommendation request of the Special Committee) or , the Special Committee has determined in good faith based on the information then available willingness and after consultation with its financial advisor right of such Series A Holders, notwithstanding any then-effective Written Consent, to negotiate, vote to approve and outside counsel either consummate any Acquisition Proposal that constitutes a Superior Proposal or is reasonably likely (provided that nothing in this clause (b) shall require the Series A Holders to result in a Superior Proposal in accordance with the Merger Agreement vote to approve any such Acquisition Proposal), and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From cooperate reasonably with the date hereof until Special Committee in responding to any such inquiry, communication, offer, proposal or request and the earlier taking of any other action by the termination Special Committee under Section 5.03 of the Merger Agreement pursuant Agreement, including by keeping the Special Committee informed of, and giving the Special Committee the opportunity to Article VIII thereof and the Company Merger Effective Timeparticipate in, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with between any Person Series A Holder and any person providing any inquiry, offer or Group pursuant to Section 4.1(b) request, and shall provide, in connection with such notice, (x) participating at the identity request of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, Special Committee in any event, within forty-eight (48) hours), of discussions or negotiations between the status Special Committee and terms of any such Acquisition Proposal and the status of any such or discussions or negotiationsperson. Notwithstanding the foregoing, nothing in this Section 1.2 shall require any Series A Holder or its Representatives to, directly or indirectly, engage in any activity which would be prohibited by, or would constitute a breach or violation of, Section 5.03 of the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofMerger Agreement.
Appears in 1 contract
Acquisition Proposals. (a) 5.5.1 From and after the date hereof and until and including the Effective Time (or earlier of the termination of this Agreement), the Merger Agreement pursuant Company shall immediately cease and cause to Article VIII thereof be terminated any activities, discussions or negotiations with respect to an Acquisition Proposal (as defined herein), and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and nor shall it shall instruct and use permit any Subsidiary, or authorize or permit any of its reasonable best efforts to direct officers, directors or employees or holders of more than five percent of its Representatives not outstanding shares of Common Stock or any investment banker, financial advisor, attorney, accountant or other representative or agent of the Company or any Subsidiary, to, directly or indirectly:
, (1i) solicit, initiate, solicitor encourage (including by way of furnishing or otherwise providing, propose or knowingly encourage providing access to nonpublic information) any Acquisition Proposal; (ii) participate in any discussions or knowingly negotiations relating to any Acquisition Proposal (or any inquiry relating to an Acquisition Proposal) or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, constitutes an Acquisition Proposal;
; or (4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5iii) enter into any Alternative letter of intent, agreement in principle or definitive agreement with respect to any Acquisition AgreementProposal; or
(6) authorizeprovided, resolvehowever, agree that nothing contained in this Section 5.5 shall prohibit the Company or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a)Board from furnishing nonpublic information to, the Stockholders and their Representatives may engage in or otherwise participate in entering into discussions or negotiations regarding a bona fide written with, any person or entity with respect to any unsolicited Acquisition Proposal received after if (but only if): (a) the date of this Agreement, if Board determines reasonably and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available faith, after due investigation and after consultation with and based upon the advice of its outside financial advisor and outside counsel either constitutes advisor, that such Acquisition Proposal is a Superior Proposal or is (as defined below); (b) the Board determines reasonably likely to result and in a Superior Proposal in accordance good faith, after due investigation and after consultation with and based upon the Merger Agreement and advice of outside counsel, that the failure to take such action would reasonably be expected cause the Board to be inconsistent with violate its fiduciary duties to stockholders under applicable Law.
law in the context of the Transactions; and (c) From the Company (x) provides at least two business days' notice to Acquiror to the effect that it is taking such action and (y) receives from such person or entity an executed confidentiality agreement substantially similar to the Confidentiality Agreement. Notwithstanding the foregoing, nothing in this Section 5.5 will restrict the Company from effecting the Power Facility Sales as contemplated hereby.
5.5.2 Notwithstanding anything in this Agreement to the contrary, the Company shall promptly advise Parent orally and in writing of the receipt by it (or by any of the other entities or persons referred to above) after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person Acquisition Proposal or Group that is in effect of the date hereof) (y) a summary of any inquiry which could reasonably lead to an Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal andor inquiry, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), the identity of the status and terms of person or entity making any such Acquisition Proposal. The Company agrees that it will fully enforce (including by way of obtaining an injunction), and not waive any provision of, any confidentiality agreement to which it is a party.
5.5.3 For purposes of this Agreement: "Acquisition Proposal" means any bona fide offe or proposal with respect to a merger, consolidation, share exchange or similar transaction involving the Company or any Subsidiary or any purchase of all or any significant portion of the assets or capital stock of the Company or any significant Subsidiary or any other business combination (including the acquisition of any equity interest therein) involving the Company excluding, however, any proposal or transaction with respect to the Power Facilities; and "Superior Proposal" means an Acquisition Proposal which the Board believes in good faith, after due investigation (taking into account, among other things, the financing terms and the status likelihood of any such or discussions or negotiations. Notwithstanding consummation) and based upon the foregoingadvice of its outside legal and financial advisors, the Stockholders shall not be required to notify Parent of any discussions or negotiations is more favorable to the extent Company's stockholders from a financial point of view than the Company has notified Parent thereofMerger (taking into account the Distribution).
Appears in 1 contract
Acquisition Proposals. (a) From Subject to Section 6.03(b), Section 6.03(c), Section 6.03(d), Section 6.03(e) and Section 6.03(f), from and after the date hereof of this Agreement until the earlier of the Effective Time or the termination of the Merger this Agreement pursuant to Article VIII thereof and in accordance with its terms, (i) neither the Company Merger Effective Timenor any of its Subsidiaries shall, subject to Section 8, each nor shall the Company or any of its Subsidiaries authorize or knowingly permit any of the Stockholders hereby agrees that it shall notdirectors of the Company, and it shall instruct and use the officers or employees of the Company, or any investment bankers, attorneys, accountants or other advisors or other Representatives retained by the Company or its reasonable best efforts to direct its Representatives not Subsidiaries (collectively, “Company Representatives”) to, directly or indirectly:
, (1A) initiate, solicit, propose or knowingly encourage initiate or knowingly facilitate any inquiries or encourage the making submission of any inquiry, proposal or offer that which constitutes, or would reasonably be expected expect to lead toresult in, any an Acquisition Proposal;
, (2B) engage inenter into, continue or otherwise participate in any discussions or negotiations regardingwith, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to to, any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, Third Party in any such case connection with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
, (4C) approve, endorse recommend, publicly declare advisable or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative agreement in principle, letter of intent, merger agreement, acquisition agreement, joint venture agreement or other similar agreement relating to an Acquisition Agreement; or
Proposal (6other than any Acceptable Confidentiality Agreement entered into in accordance with this Section 6.03), or (D) authorize, resolve, agree to or commit propose publicly to do any of the foregoing, and (ii) the Board of Directors of the Company shall not (x) fail to make, withdraw or modify in a manner adverse to Parent (or publicly propose to withdraw, modify or qualify in any manner adverse to Parent) the Company Board Recommendation, (y) adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of, an Acquisition Proposal, or (z) fail to include in the Proxy Statement the Company Board Recommendation (any of the foregoing in this clause (ii), an “Adverse Recommendation Change”; provided, that, for the avoidance of doubt, but subject to compliance by the Company with the terms of this Section 6.03, none of (1) the determination by the Board of Directors in accordance with Section 6.03(f) that an Acquisition Proposal constitutes a Superior Proposal, (2) the disclosure by the Company of such determination in accordance with Section 6.03(f), or (3) the delivery by the Company of the notice required by Section 6.03(e) shall constitute an Adverse Recommendation Change).
(b) Notwithstanding anything contained in this Agreement to the contrary in Section 4.1(a)contrary, the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received if at any time after the date of this AgreementAgreement and prior to obtaining the Company Stockholder Approval, if the Company, any Subsidiary of the Company or any of the Company Representatives receives a written Acquisition Proposal from any Third Party that did not result from a breach of Section 6.03(a) and only to the extent that the Company Board (acting upon the recommendation of Directors of the Special Committee) or the Special Committee has determined Company determines in good faith based on the information then available and (I) to be bona fide, (II) after consultation with its financial advisor and outside counsel either constitutes legal counsel, constitutes, or would reasonably be expected to result in, a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance (III) after consultation with the Merger Agreement and its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its result in a breach of the fiduciary duties of the Company’s directors under applicable Applicable Law, then the Company, directly or indirectly through the Company Representatives, may (i) engage in negotiations or discussions with such Third Party and its Representatives and actual or potential sources of financing (including, as a part thereof, making any counterproposal), and (ii) furnish to such Third Party or its Representatives and actual or potential sources of financing non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided, that, prior to or substantially concurrently with the time it is made available to such Third Party, the Company shall make available to Parent any non-public information relating to the Company or its Subsidiaries that is made available to such Third Party and that was not previously made available to Parent.
(c) From Notwithstanding anything contained in this Agreement to the date hereof until contrary at any time prior to obtaining the earlier Company Stockholder Approval, if (A) an Intervening Event has occurred, and (B) the Board of Directors of the termination Company determines in good faith and after taking into account any revisions to the terms of this Agreement that may be offered in writing by Parent in accordance with this Section 6.03(c), after consultation with outside legal counsel and its financial advisors, that the failure to make an Adverse Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under Applicable Law, then the Board of Directors of the Merger Agreement pursuant to Article VIII thereof and Company may make an Adverse Recommendation Change; provided, that, if the Company Merger Effective Timeis making an Adverse Recommendation Change in response to any Intervening Event (other than an Acquisition Proposal, subject to which shall be governed by Section 86.03(f)), each Stockholder (solely in its capacity as a stockholder then the Board of Directors of the CompanyCompany shall not make such Adverse Recommendation Change unless the Company has (i) agrees provided to Parent at least three (3) Business Days’ prior written notice (it being understood and agreed that any material change in facts or circumstances relating to an Intervening Event shall require a new notice and a new three (3) Business Day period) that it will promptly intends to take such action and specifying in reasonable detail the facts underlying the decision by the Board of Directors of the Company to take such action and (andii) during such three (3) Business Day period, if requested by Parent, engaged in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Adverse Recommendation Change.
(d) In addition, nothing contained herein shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the 1934 Act with regard to an Acquisition Proposal; provided, that any Person such action taken or Group pursuant statement made that relates to Section 4.1(b) and an Acquisition Proposal shall provide, not be deemed to be an Adverse Recommendation Change if the Board of Directors of the Company reaffirms the Company Board Recommendation in such statement or in connection with such notice, action or (xii) making any disclosure to the identity stockholders of the Person Company if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties under Applicable Law; provided further that in no event shall the Board of Directors of the Company be permitted to make any Adverse Recommendation Change except in accordance with Section 6.03(c) or Group making such proposal Section 6.03(f) hereunder, as applicable.
(unless such disclosure is prohibited pursuant e) The Company shall notify Parent orally and in writing promptly (but in no event later than 24 hours) after receipt by the Company of any Acquisition Proposal, any proposals or inquiries that would reasonably be expected to lead to an Acquisition Proposal, or any inquiry or request for nonpublic information relating to the terms Company or any of its Subsidiaries by any confidentiality agreement with Person who has made, or has expressly indicated that such Person or Group that is in effect of contemplating making, any Acquisition Proposal. Any such notice shall identify the date hereof) (y) a summary of Third Party making, and the material terms and conditions of (or the nature of), any such Acquisition Proposal, inquiry or request and shall attach a copy of any written Acquisition Proposal (or summary of the terms of any oral Acquisition Proposal) and a copy of all written materials provided by such Person with respect to such Acquisition Proposal. The Company shall keep Parent reasonably informed promptly (but in no event later than 24 hours) after any material changes in status or material terms of any Acquisition Proposal andand shall provide to Parent promptly (but in no event later than 24 hours) after receipt thereof of copies of proposed transaction agreements or proposal letters sent or provided to the Company or any of its Subsidiaries that describe any material terms or conditions of any Acquisition Proposal, if in writing, a copy thereof and thereafter shall keep Parent informedreasonably informed as to the nature of any information requested of the Company with respect thereto. Upon request of Parent, on a prompt basis (and, in any event, within forty-eight (48) hours), the Company shall apprise Parent of the status of any such Acquisition Proposal, inquiry or request. If an Acquisition Proposal shall have been publicly announced (other than by Parent, its Subsidiaries or any of their respective Affiliates or Representatives), the Company shall publicly reaffirm the Company Board Recommendation within ten (10) Business Days after receipt of a written request by Parent to provide such reaffirmation, unless an Adverse Recommendation Change is permitted by Section 6.03(b); provided, however, that in no event shall the Company be obligated to publicly reaffirm the Company Board Recommendation on more than one occasion with respect to each such publicly announced Acquisition Proposal by any Third Party or on more than one occasion with respect to each publicly announced material modification thereto.
(f) Notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company may make an Adverse Recommendation Change in response to an Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), only so long as (i) such Acquisition Proposal was not the result of a breach of this Section 6.03 and such Acquisition Proposal is not withdrawn, (ii) the Board of Directors of the Company has determined in good faith, after consultation with its financial advisor and outside legal counsel and after taking into account any revisions to the terms of this Agreement that may be offered in writing by Parent in accordance with this Section 6.03(f), (A) that such Acquisition Proposal constitutes a Superior Proposal, and (B) that the failure to take make an Adverse Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under Applicable Law, (iii) the Company (A) notifies Parent in writing (a “Change Notice”) at least three (3) Business Days before the making of any Adverse Recommendation Change of the determination of the Board of Directors of the Company that such Acquisition Proposal constitutes a Superior Proposal and of its intention to take such action, attaching the most current version of all proposed agreements under which such Superior Proposal is proposed to be consummated and all other material terms and conditions in respect of such Acquisition Proposal and the status identity of the Third Party making such Superior Proposal, (B) during the three (3) Business Day period beginning on the date of receipt (or deemed receipt in accordance with Section 11.01) of the Change Notice by Parent, is available to negotiate in good faith with Parent (if requested by Parent) any proposal by Parent to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal (provided that any amendment, supplement or discussions or negotiations. Notwithstanding modification to any Acquisition Proposal shall require the foregoingCompany to deliver to Parent a new Change Notice and a new negotiation period, except that the Stockholders new negotiation period under this Section 6.03(f) with respect to any revised Acquisition Proposal shall not be required to notify Parent two (2) Business Days, instead of three (3) Business Days), and (iv) the Board of Directors of the Company (A) shall have considered in good faith any discussions or negotiations revisions to the extent the Company has notified terms of this Agreement offered in writing by Parent thereofpursuant to this Section 6.03(f), and (B) shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal remains a Superior Proposal.
(g) As used in this Agreement:
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement Termination Date, each Stockholder hereby covenants and agrees that, except as expressly contemplated pursuant to Article VIII thereof and this Agreement (including Section 4.1(c)), the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it Stockholder shall not, and it shall instruct cause its controlled Affiliates and use its reasonable best efforts to direct its Representatives and their directors, officers, employees not to, directly or indirectly:
indirectly (1i) solicit, initiate, solicit, propose knowingly facilitate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or that would reasonably be expected to lead to, to any Acquisition Proposal;
; (2ii) engage inenter into, continue or otherwise participate in any discussions (other than informing Persons of the existence of the provisions of this Section 4.1(a)) or negotiations regarding, or furnish or provide access to any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes who has made or would reasonably be expected to lead tomake any Acquisition Proposal or otherwise for the purpose of encouraging or facilitating, an any Acquisition Proposal;
(5) enter into , in each case, except to the extent that at such time such Stockholder or its Affiliates are expressly permitted to take any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit such action pursuant to do any Section 6.1 of the foregoingMerger Agreement.
(b) Notwithstanding anything Each Stockholder hereby covenants to and agrees with the contrary in Section 4.1(a), the Stockholders Company (and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreementnot Parent) that, if and only to the extent such Stockholder receives any inquiry or proposal that constitutes an Acquisition Proposal, such Stockholder shall promptly inform the Company Board (acting upon the recommendation of the Special Committee) such inquiry or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement proposal and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawdetails thereof.
(c) From Each Stockholder hereby covenants to and agrees with the Company (and not Parent (but without limiting the Company’s obligations under the Merger Agreement)) that, during the period from the date hereof until the earlier Termination Date, such Stockholder shall, if requested to do so by action of the termination Company Board, explore in good faith the possibility of working with any Persons or groups of Persons regarding an Acquisition Proposal (provided, that the Company is permitted pursuant to Section 6.1(a) or 6.1(c) of the Merger Agreement pursuant to Article VIII thereof engage in discussions with such Persons or groups of Persons regarding such Acquisition Proposal), including by reviewing and responding to proposals and taking part in meetings and negotiations with respect thereto; it being understood and agreed that such Stockholder’s decision as to whether to ultimately agree to any transaction with any such Person or group of Persons shall be within such ▇▇▇▇▇▇▇▇▇▇▇’s discretion.
(d) Each Stockholder hereby covenants to and agrees with the Company Merger Effective Time, subject to Section 8(and not Parent) that, each Stockholder (solely in its capacity as a stockholder shall keep confidential from the Parent Entities and each of their Affiliates and Representatives the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal andmade by a Person other than Parent or a group of Persons of which Parent is a member; provided, if that such confidentiality obligation shall be subject to the notification obligations of the Company pursuant to Section 6.1(f) of the Merger Agreement. For purposes of this Agreement, the term “group” shall have the meaning ascribed to such term in writingRule 13d-3 promulgated under the Exchange Act.
(e) Each Stockholder hereby covenants to and agrees with the Company (and not Parent), a copy thereof and thereafter shall keep Parent informedsuch Stockholder will not enter into any exclusivity, “lock-up”, “dry-up” or similar agreement, arrangement or understanding, whether written or oral, between such Stockholder or any of its Affiliates, on a prompt basis the one hand, and any other Person, including any Parent Entity or any of their Affiliates or any other potential counterparty or any financing source to the transactions contemplated by the Merger Agreement (and, in or any event, within forty-eight (48alternative transaction) hours), or any representatives of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, on the Stockholders shall not be required to notify Parent of other hand, including any discussions agreement, arrangement or negotiations to understanding that would prevent such Stockholder from taking the extent the Company has notified Parent thereofactions described in Section 4.1 hereof.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Until this Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to has been terminated in accordance with Section 88.1, each of DMGI and the Stockholders hereby Orchard agrees that it shall will not, and it shall instruct will cause its controlled Affiliates and use its reasonable best efforts to direct its Representatives and their officers, directors, agents and representatives not to, directly or indirectly:
, (1i) (A) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead proposals with respect to, any Acquisition Proposal;
(2B) engage in, continue or otherwise participate in any discussions or negotiations regardingconcerning, or (C) provide any non-public confidential or nonpublic information or data to or (D) have, or engage or participate in, any Person or Group discussions with any person relating to, any Acquisition Proposal (as defined in clause (d) below), (ii) release or permit the release of any person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which such party is a party or under which such party has any rights with respect to the sale or transfer of the voting securities or any inquirymaterial portion of the assets of such party, proposal (iii) withdraw, modify or offer qualify (or propose to withdraw, modify or qualify) in any manner adverse to the other party the recommendation by such party’s Board of Directors of this Agreement to its stockholders or take any action or make any statement in connection with such party’s meeting of stockholders inconsistent with such recommendation, including any action to approve, recommend or endorse, or to propose to approve, recommend or endorse, any Acquisition Proposal (collectively, a “Change in Recommendation”) or (iv) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Acquisition Proposal or requiring such party to abandon, terminate or fail to consummate any of the transactions contemplated hereby, including the Merger.
(b) Notwithstanding Section 6.12(a), prior to approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, each of DMGI and the Orchard (the “Acting Party”) may, and may permit its Affiliates and its and their appropriate officers, directors, agents and representatives to furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions with, any person in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Acting Party after the Execution Date and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, and may withdraw, modify or qualify the recommendation by such party’s Board of Directors of this Agreement to its stockholders in connection therewith, if and so long as (A) none of the Acting Party, any of its controlled Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.12, (B) the Board of Directors of the Acting Party concludes in good faith (after receiving the advice of its outside counsel and its financial advisors) that failure to take such actions would result in a violation of its fiduciary duties under applicable law, (C) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to, and participating in such negotiations or discussions with, such person, the Acting Party provides the other party with written notice of the identity of such person and of the Acting Party’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such person, (D) prior to providing any nonpublic information to such person, the Acting Party shall have entered into a confidentiality and standstill agreement with such person (a copy of which it shall have provided to the other party) on terms no less restrictive upon such person, in any respect, than the terms applicable to the other party under the Confidentiality Agreement, which confidentiality and standstill agreement shall not provide such person with any exclusive right to negotiate with the Acting Party or have the effect of preventing the Acting Party from satisfying its obligations under this Agreement, (E) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to such person, the Acting Party furnishes such information to the other party (to the extent such information has not been previously delivered or made available by the Acting Party to the other party) and (F) prior to so withdrawing, modifying or qualifying the recommendation by its Board of Directors of this Agreement, the Acting Party gives the other party five business days’ prior written notice of its intention to do so (unless at the time such notice is otherwise required to be given there are less than five business days prior to the Acting Party’s stockholders meeting, in which case the Acting Party shall provide as much notice as is reasonably practicable), and during such time, the Acting Party, if requested by the other party, shall have engaged in good faith negotiations to amend this Agreement (including by making its officers and its financial and legal advisors reasonably available to negotiate) such that the Board of Directors of the Acting Party may continue to recommend the approval of this Agreement.
(c) If DMGI effects a Change in Recommendation, the Orchard shall have the option (the “Stockholder Vote Option”), exercisable within ten business days after such Change in Recommendation, to cause DMGI’s Board of Directors to submit this Agreement to its stockholders for the purpose of adopting this Agreement and approving the Merger.
(d) Each of DMGI and the Orchard shall, and shall cause its controlled Affiliates and its and their appropriate officers, directors, agents and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the Execution Date with any persons other than the Orchard or DMGI, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within one day) request each person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring such party or any portion thereof (including any of its Subsidiaries) to return all nonpublic information heretofore furnished to such person by or on behalf of such party and shall advise the other party of the particulars of such request. Each party will (i) promptly (within 24 hours) advise the other party following receipt of any request for information, of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal Proposal, and the substance thereof (other than to state that including the terms and conditions of, and the identity of this Section 4.1 prohibit the person making, such discussionsrequest, Acquisition Proposal or inquiry);
, (3ii) furnish promptly (within 24 hours) provide the other party with all written materials received by such party in connection with the foregoing and (iii) keep the other party apprised of any related developments, discussions and negotiations on a current basis. Each of DMGI and the Orchard shall use its reasonable best efforts to enforce any Person (other than Parent existing confidentiality or any of its Affiliates) any non-public information relating standstill agreements to the Company which it or any of its Subsidiaries is a party in accordance with the terms thereof.
(e) As used in this Agreement, “Acquisition Proposal” shall mean any offer, proposal or afford inquiry relating to, or any indication of interest in, an Alternative Transaction received by a party from any person other than the other party, in each case, whether or not in writing and whether or not delivered to any such Person access party or to the businessstockholders of such party generally. As used in this Agreement, propertiesan “Alternative Transaction” means any of (i) a transaction (or series of related transactions) pursuant to which any person (or group of persons), directly or indirectly, acquires or would acquire direct or indirect beneficial ownership of more than 15% of the outstanding shares of a party’s common stock or outstanding voting power or of any new series or new class of preferred stock that would be entitled to a class or series vote with respect to the Merger or that would be entitled to more than 15% of the fair market value of the outstanding equity interests of such party, whether from such party or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, business combination, consolidation, sale of all or substantially all of the assets, booksliquidation, records dissolution or other nonsimilar transaction involving a party or any of its “significant subsidiaries” (as defined in Rule 1-public information02 of Regulation S-X promulgated by the SEC), (iii) any transaction (or series of related transactions) pursuant to which any person (or group of persons) acquires or would acquire control of assets (including for this purpose the outstanding equity securities of Subsidiaries of such party and securities of the entity surviving any merger or business combination including any of its Subsidiaries) of such party, or to any personnel, of its Subsidiaries representing more than 15% of the Company fair market value of all the assets, net revenues or net income of such party and its Subsidiaries, in taken as a whole, immediately prior to such transaction (or series of related transactions) or (iv) any such case with the intent to induceother consolidation, business combination, recapitalization or that could reasonably be expected to result in, the making, submission similar transaction (or announcement of, an Acquisition Proposal;
(4series of related transactions) approve, endorse involving a party or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingits Subsidiaries.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Dimensional Associates, LLC)
Acquisition Proposals. (a) From and after Except as otherwise expressly provided in this Section 5.4 or in Section 5.8, from the date hereof of this Agreement until the earlier of Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Merger Agreement pursuant to Article VIII thereof Company shall not, nor will it authorize or permit any of its Subsidiaries, directors, officers, or employees to, and the Company Merger Effective Time, subject to Section 8, each shall not permit the Representatives of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not Company to, directly or indirectly:
(1i) initiate, solicit, propose or knowingly encourage solicit or knowingly facilitate or encourage any inquiries with respect to, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead toof, any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any negotiations or discussions or negotiations regardingconcerning, or provide access to its or its Subsidiaries’ properties, books and records or any non-public confidential information or data to any Person or Group relating to, any Person relating to an Acquisition Proposal or any inquiryproposal, proposal offer or offer inquiry that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement, (iv) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (v) execute or enter into into, any Alternative letter of intent, merger agreement, acquisition agreement or other agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (each, an “Acquisition Agreement”); provided that it is understood and agreed that any determination or action by the Company Board or the Company expressly permitted under Section 5.4(b) or Section 5.4(c) shall not be deemed to be a breach or violation of this Section 5.4(a) or
, in the case of Section 5.4(b)(i)–(v), give Parent a right to terminate this Agreement pursuant to Section 7.4. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any solicitations, discussions or negotiations with any Person (6other than the parties hereto) authorizein connection with an Acquisition Proposal, resolve, agree in each case that exists as of the date hereof. The Company also agrees that it will promptly request each Person (other than the parties hereto) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or commit destroy all confidential information furnished to do such Person by or on behalf of it or any of its Subsidiaries prior to the foregoing.
date hereof. The Company shall promptly (bbut in no event later than 48 hours after receipt thereof) notify Parent in writing of the receipt of any Acquisition Proposal or any proposal, offer or inquiry that could reasonably be expected to lead to an Acquisition Proposal after the date hereof, which notice shall include a summary of the material terms of and the identity of the Person making, such Acquisition Proposal, other proposal, offer or inquiry and the Company shall thereafter keep Parent reasonably informed in all material respects on a reasonably current basis of any substantive developments (including any material change to the terms thereof) regarding any such Acquisition Proposal and shall promptly (but in no event later than 48 hours after receipt) provide to Parent copies of all substantive written requests, proposals, offers or proposed agreements received by the Company or any of its Subsidiaries that describe any terms or conditions of any such Acquisition Proposal. Notwithstanding anything to the contrary in Section 4.1(a)herein, the Stockholders and their Representatives Company may engage in grant a waiver, amendment or otherwise participate in discussions release under any confidentiality or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only standstill agreement to the extent that necessary to allow for a confidential Acquisition Proposal to be made to the Company or the Company Board (acting upon if the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and Company Board determines after consultation with its financial advisor and outside legal counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and Company that the failure to take waive or release such action provision would be reasonably be expected likely to be inconsistent with its fiduciary duties under applicable Law.
(cb) From Notwithstanding anything to the date hereof until contrary in Section 5.4(a), nothing contained in this Agreement shall prevent the earlier Company or the Company Board from:
(i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), making any “stop-look-and-listen” communication to the stockholders of the termination of the Merger Agreement Company pursuant to Article VIII thereof and Rule 14d-9(f) under the Company Merger Effective Time, subject Exchange Act (or any similar communications to Section 8, each Stockholder (solely in its capacity as a stockholder the stockholders of the Company) agrees or from making any disclosure to stockholders that it will promptly the Company determines is legally required, including with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided, that nothing set forth in this Section 5.4(b)(i) shall be deemed to (x) modify or supplement the definition of “Change of Board Recommendation” or (y) permit the Company or the Company Board to make a Change of Board Recommendation except as otherwise permitted pursuant to Section 5.4 or Section 5.8(f) (for the avoidance of doubt, the issuance by the Company or the Company Board of any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company) which does not effect a Change of Board Recommendation shall not in and of itself constitute a Change of Board Recommendation));
(ii) prior to obtaining the Requisite Stockholder Approval, contacting and engaging in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group group and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a), solely for the purpose of clarifying such Acquisition Proposal and the terms thereof;
(iii) prior to obtaining the Requisite Stockholder Approval, providing access to its properties, books and records and providing information or data in response to a request therefor by a Person or group who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a), if (A) the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisor, that such Acquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal, (B) the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement and (C) promptly (and in any event within 24 hours) after furnishing or making available any non-public information concerning the Company and its Subsidiaries to any such Person, the Company furnishes or makes available such information to Parent or its Representatives (to the extent such information has not been previously furnished or made available by the Company to Parent or its Representatives);
(iv) prior to obtaining the Requisite Stockholder Approval, contacting and engaging in any negotiations or discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in breach of Section 5.4(a) (which negotiations or discussions need not be solely for clarification purposes) if the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisor, that such Acquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal; or
(v) prior to obtaining the Requisite Stockholder Approval, making a Change of Board Recommendation (to the extent permitted by Section 5.4(c) or Section 5.4(d), as applicable, and Section 5.8(f)).
(c) Notwithstanding anything in this Section 5.4 to the contrary, if, at any time prior to obtaining the Requisite Stockholder Approval, the Company Board determines in good faith, after consultation with its legal counsel and financial advisor, in response to an Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.4(a), that such proposal constitutes a Superior Proposal, the Company or the Company Board may make a Change of Board Recommendation or terminate this Agreement pursuant to Section 4.1(b7.3(b) and shall provideto enter into a definitive agreement with respect to such Superior Proposal; provided, that the Company will not be entitled to terminate this Agreement in accordance with Section 7.3(b) or effect a Change of Board Recommendation in connection with such notice, a Superior Proposal unless (xi) the identity of Company shall have delivered to Parent a written notice (a “Company Notice”) advising Parent that the Person or Group making Company Board proposes to take such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board and all material documents relating thereto; provided, further, that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply again with the requirements of this Section 5.4(c) with respect to such new written notice (it being understood that the Notice Period in respect of such new written notice shall expire at 5:00 pm New York City time on the second (2nd) Business Day immediately following the day on which the Company delivered such new written notice), (ii) the Company Board shall have determined in good faith, after consultation with legal counsel, that failure to effect a Change of Board Recommendation or terminate this Agreement to enter into a Superior Proposal, as applicable, would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (iii) (A) the Company Board shall have considered in good faith any proposed changes to this Agreement proposed in writing by Parent no later than 5:00 p.m., New York City time, on the third (3rd) Business Day immediately following the day on which the Company delivered the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the third (3rd) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), the Company Board, taking into account any proposed changes to this Agreement proposed during the Notice Period, shall have again made the determination required by clause (ii) of this Section 5.4(c) and (B) in the case of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Acquisition Agreement for a Superior Proposal, the Company shall have complied in all material respects with its obligations under this Section 5.4 and, if concurrently therewith or prior thereto, have paid the Termination Fee in writingaccordance with Section 7.5(b). If requested by Parent, a copy thereof the Company shall have, and thereafter shall keep have caused its Representatives to, during the Notice Period, engage in good faith negotiations with Parent informed, on a prompt basis (and, and its Representatives to make such adjustments in any event, within forty-eight (48) hours), the terms and conditions of the status and terms of any this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, other than in connection with an Acquisition Proposal received by the Company or its Subsidiaries, the Company Board may at any time prior to obtaining the Requisite Stockholder Approval take or fail to take the actions specified in clauses (i) or (iii) of the definition of Change of Board Recommendation (and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders Company shall not be required to notify Parent of any discussions or negotiations to the extent include the Company has Board Recommendation in the Proxy Statement) in response to an Intervening Event if the Company Board shall have determined in good faith, after consultation with its legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that, (i) the Company notified Parent thereofin writing at least three (3) Business Days before taking such action of its intention to do so, attaching a reasonably detailed description of the basis of such proposed action; and (ii) after such three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with its legal counsel, and taking into account any proposal by Parent to amend the terms of this Agreement made during such period, that the failure to take such action would still be reasonably likely to be inconsistent with its fiduciary duties under applicable Law. If requested by Parent, the Company will, and will cause its Representatives to, during such Notice Period, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that such Intervening Event would cease to warrant a Change of Board Recommendation.
(e) For purposes of this Agreement, the following terms shall have the meaning assigned below:
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall notNo Southwest Entity shall, and it shall instruct and use its reasonable best efforts to direct cause its Representatives not to, directly or indirectly:
, (1i) solicit, initiate, solicitencourage (including by providing information or assistance), propose facilitate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, induce any Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information furnish or data cause to be furnished to any Person or Group relating “Group” (as such term is defined in Section 13(d) under the Exchange Act) any nonpublic information with respect to, or take any Acquisition Proposal other action to facilitate any inquiries or the making of any inquiry, offer or proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public informationconstitutes, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would may reasonably be expected to lead to, an Acquisition Proposal;
, (5iii) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolveapprove, agree to, accept, endorse or commit recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to do approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the foregoingrestrictions set forth in this Section 7.2 by any Subsidiary or Representative of Southwest shall constitute a breach of this Section 7.2 by Southwest.
(b) Notwithstanding anything to the contrary in Section 4.1(a7.2(a), the Stockholders and their if Southwest or any of its Representatives may engage in or otherwise participate in discussions or negotiations regarding a receives an unsolicited, bona fide written Acquisition Proposal received by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to Southwest’s 46 Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Southwest and its Representatives may, prior to (but not after) Southwest’s Shareholders’ Meeting, take the following actions if the board of directors of Southwest (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with Southwest’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the date failure to take such actions would cause it to violate its fiduciary duties under applicable Law, and (ii) obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of this Agreementthe Confidentiality Agreement is in each provision with respect to ▇▇▇▇▇▇▇ (and such confidentiality agreement shall not provide such Person or “Group” with any exclusive right to negotiate with Southwest): (A) furnish information to (but only if Southwest shall have provided such information to ▇▇▇▇▇▇▇ prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or “Group” with respect to such bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Southwest shall advise ▇▇▇▇▇▇▇ in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and Southwest shall as promptly as practicable provide to ▇▇▇▇▇▇▇ (i) a copy of such Acquisition Proposal, request or inquiry, if and only in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Southwest shall provide ▇▇▇▇▇▇▇ as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep ▇▇▇▇▇▇▇ informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the extent that contrary, at any time prior to Southwest’s Shareholders’ Meeting, if Southwest has received a Superior Proposal (after giving effect to the Company Board terms of any revised offer by ▇▇▇▇▇▇▇ pursuant to this Section 7.2(d)), the board of directors of Southwest may, in connection with the Superior Proposal, make a Change in the Southwest Recommendation (acting upon including, for the recommendation avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the Special Committee) or the Special Committee board of directors of Southwest has determined in good faith based on the information then available and faith, after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Southwest may not take the actions set forth in this Section 7.2(d) unless:
(i) Southwest has complied in all material respects with this Section 7.2;
(ii) Southwest has provided prior written notice to ▇▇▇▇▇▇▇ at least five Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise ▇▇▇▇▇▇▇ that the board of directors of Southwest has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Southwest has and has caused its financial advisors and outside legal counsel to, negotiate with ▇▇▇▇▇▇▇ in good faith (to the extent ▇▇▇▇▇▇▇ desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Southwest) a Superior Proposal; and
(iv) the board of directors of Southwest has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by ▇▇▇▇▇▇▇, if any, that such Superior Proposal remains a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Southwest shall deliver a new written notice to ▇▇▇▇▇▇▇ and shall comply with the requirements of this Section 7.2 with respect to such new written notice, including commencement of a new Notice Period. Notwithstanding any Change in the Southwest Recommendation, this Agreement shall be submitted to the shareholders of Southwest at Southwest’s Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Southwest of such obligation; provided, that if the board of directors of Southwest shall have effected a Change in the Southwest Recommendation, then the board of directors of Southwest, in connection with the submission of this Agreement to the shareholders of Southwest may submit this Agreement without recommendation (although the resolution adopting this Agreement as of the date hereof may not be rescinded), in which event the board of directors of Southwest may communicate the basis for its lack of a recommendation to the shareholders of Southwest in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Southwest shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger or enter into any Acquisition Agreement with respect to any Acquisition Transaction other than the Merger.
(ce) From the date hereof until the earlier of the termination of the Merger Agreement pursuant Southwest and Southwest Subsidiaries shall, and Southwest shall direct its Representatives to, (i) immediately cease and cause to Article VIII thereof be terminated any and the Company Merger Effective Timeall existing activities, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than ▇▇▇▇▇▇▇ and its Representatives) that has made or Group indicated an intention to make an Acquisition Proposal and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(f) Nothing contained in this Agreement shall prevent Southwest or its board of directors from issuing a “stop, look and listen” communication pursuant to Section 4.1(bRule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and shall provide, in connection Rule 14e-2 under the Exchange Act with such notice, respect to an Acquisition Proposal or from making any disclosure to the shareholders of Southwest if the board of directors of Southwest (xafter consultation with outside legal counsel) the identity concludes that its failure to do so would be a violation of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms directors’ fiduciary duties under applicable Law. Issuance of any such Acquisition Proposal and communication shall be deemed a Change in the status Southwest Recommendation unless the communication includes a reaffirmation of any such or discussions or negotiations. Notwithstanding the foregoing, Southwest Recommendation in favor of approval by the Stockholders shall not be required to notify Parent shareholders of any discussions or negotiations to the extent the Company has notified Parent thereofSouthwest of this Agreement.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and Except as permitted by this Section 6.3, the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall notwill, and it shall will cause the Company Representatives to:
(i) (A) immediately cease and cause to be terminated any solicitation, encouragement, activities, discussions or negotiations with any Persons that may be ongoing with respect to any Acquisition Proposal, (B) take the necessary steps to promptly inform such Persons of the obligations set forth in this Section 6.3 (C) immediately instruct each Person that has previously executed a confidentiality agreement in connection with such Person’s consideration of an Acquisition Proposal to return to the Company or destroy any non-public information previously furnished to such Person or to any Person’s Representatives by or on behalf of the Company or any Company Subsidiary, and (D) enforce (and not release, waive, amend or modify the provisions of) any confidentiality, non-solicit, non-use its reasonable best efforts to direct its Representatives not toor standstill agreements entered into with any Person; and
(ii) not, directly or indirectly:
: (1A) solicit, initiate, solicit, propose seek or knowingly encourage or facilitate or take any action to solicit, initiate or seek or knowingly encourage or facilitate any inquiries or the making inquiry, expression of any interest, proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, any to an Acquisition Proposal;
, (2B) engage enter into, participate in, maintain or continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal with any Person other than Parent or Merger Sub, (C) furnish to any Person other than Parent or Merger Sub any information that the Company believes or should reasonably expect would be used in connection with, or for the purposes of formulating, any Acquisition Proposal, (D) enter into any agreement, letter of intent, memorandum of understanding, agreement in principle or Contract providing for or otherwise relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with the terms of the this Agreement) (each, an “Alternative Acquisition Agreement”) or (E) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company. Without limiting the generality of the foregoing, the parties hereto acknowledge and hereby agree that any violation of the restrictions set forth in this Section 6.3 by any Company Representative will be deemed to be a breach of this Section 6.3 by the Company.
(b) From and after the date of this Agreement, the Company will promptly (and in any event within 24 hours) provide Parent with: (i) a written description of any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal (including any modification thereto), or any request for information that would reasonably be expected to lead to an Acquisition Proposal (other than to state Proposal, that is received by the terms of this Section 4.1 prohibit such discussions);
(3) furnish to Company or any Company Subsidiary or any Company Representative from any Person (other than Parent or Merger Sub) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a copy of each material written communication and a summary of each material oral communication transmitted by or on behalf of the Other Interested Party or any of its Affiliates) any non-public information relating Representatives to the Company or any of its Subsidiaries Company Representative or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, transmitted on behalf of the Company or any Company Representative to the Other Interested Party or any of its Representatives. Without limiting the foregoing, the Company will promptly (and its Subsidiaries, in any such case with event within 24 hours) notify Parent orally and in writing if the intent Company determines to induce, begin providing information or that could reasonably be expected to result in, the making, submission engage in discussions or announcement of, negotiations concerning an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected Proposal pursuant to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingSection 6.3(c).
(bc) Notwithstanding anything to the contrary contained in Section 4.1(a6.3(a), if prior to the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding time at which the Company Stockholder Approval is obtained (the “Subsequent Time”), (i) the Company has received a bona fide written Acquisition Proposal received after from a third party, (ii) such Acquisition Proposal was not solicited, initiated, encouraged or facilitated in material breach of the date provisions of this Agreement, if and only to the extent that (iii) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and faith, after consultation with its financial advisor advisors and outside counsel either counsel, that such Acquisition Proposal constitutes a Superior Proposal or is reasonably likely to result in lead to a Superior Proposal and (iv) after consultation with its outside counsel, the Company Board determines in accordance with the Merger Agreement and good faith that the failure to take such action actions would reasonably be expected to be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(c) From , then prior to but not after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and Subsequent Time, the Company Merger Effective Time, subject may take the following actions: (A) furnish information with respect to Section 8, each Stockholder the Company to the Person making such Acquisition Proposal and/or (solely B) participate in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided, that the Company (x) will not, and will not allow any Company Representative to, take any action contemplated by the foregoing clauses (A) or (B) without first entering into an Acceptable Confidentiality Agreement and (y) will promptly provide to Parent any information concerning the Company provided to such other Person that was not previously provided to Parent or Group the Parent Representatives.
(d) Subject to Section 6.3(e), neither the Company Board nor any committee thereof will (i) withhold, withdraw or qualify (or modify in a manner adverse to Parent) (or publicly propose to withhold, withdraw, qualify or so modify) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (ii) adopt, approve, recommend, or otherwise declare advisable (or publicly propose to adopt, approve, recommend or otherwise declare advisable) the adoption of any Acquisition Proposal, (iii) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company, or (iv) authorize, commit, resolve or agree to take any such actions (each such action set forth in clauses (i) through (iv) being referred to as a “Change of Board Recommendation”).
(e) Notwithstanding anything to the contrary contained in this Article 6, if (i) the Company has received a bona fide written Acquisition Proposal from a third party that was not solicited, initiated, encouraged or facilitated in material breach of the provisions of this Agreement and that the Company Board determines in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 4.1(b6.3(e), that are binding and have been irrevocably committed to by Parent in writing, then the Company Board may, at any time prior to but not after the Subsequent Time, take the following actions: (y) effect a Change of Board Recommendation with respect to such Superior Proposal and shall provide(z) terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company may not terminate this Agreement pursuant to the foregoing clause (z), and any purported termination pursuant to the foregoing clause (z) will be void and of no force or effect, unless in connection advance of or concurrently with such termination the Company pays the Breakup Fee in accordance with Section 8.2(b); and provided, further, that the Company Board may not effect a Change of Board Recommendation pursuant to the foregoing clause (y) or terminate this Agreement pursuant to the foregoing clause (z) unless:
(i) the Company has, prior to the Subsequent Time, provided prior written notice to Parent, at least five Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, (x) the identity update or amendment will not, by itself, constitute a Change of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of Board Recommendation), which notice will specify the material terms and conditions of any Acquisition Proposal andsuch Superior Proposal, if in writing, (including the identity of the party making such Superior Proposal) and the Company has contemporaneously provided a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status relevant proposed transaction agreements with the party making such Superior Proposal, including any definitive agreement with respect to such Superior Proposal; and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, the Company negotiates, and causes the Company Representatives to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of any this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal; and
(iii) after the expiration of the Notice Period, the Company Board determines in good faith, after consultation with its financial advisors and its outside counsel, and after taking into account any amendments to this Agreement that Parent and Merger Sub have irrevocably agreed in writing to make, that (x) such Acquisition Proposal constitutes a Superior Proposal and (y) making a Change of Board Recommendation and causing the status Company to enter into such Alternative Acquisition Agreement with respect to such Superior Proposal is necessary in order for the members of the Company Board to comply with their fiduciary duties under applicable Law. In the event of any material revisions to the financial or other material terms of such or discussions or negotiations. Notwithstanding the foregoingAcquisition Proposal, the Stockholders shall not Company will be required to notify Parent of any discussions or negotiations deliver, prior to the extent Subsequent Time, a new written notice to Parent and to comply with the requirements of this Section 6.3(e) with respect to such Acquisition Proposal (provided that the Notice Period for any such subsequent notice shall be three Business Days).
(f) Nothing contained in this Agreement shall prohibit the Company has notified Parent thereof(i) from taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e–2(a) promulgated under the Exchange Act or complying with the provisions of Rule 14d–9 promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company that the Company Board determines to make in good faith (after consultation with its outside counsel) in order to fulfill its fiduciary duties under, or in order to otherwise comply with, applicable Law, in each case, so long as (A) any such disclosure includes the Company Board Recommendation, without any modification or qualification thereof and (B) does not contain either an express Change of Board Recommendation or any other statements by or on behalf of the Company Board as would reasonably be expected to have the same effect as a Change of Board Recommendation.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and nor shall it shall instruct and use authorize or knowingly permit any Company Subsidiary or any of its reasonable best efforts to direct its or their respective directors, officers or employees or any Representatives not retained by it or any Company Subsidiary to, directly or indirectly:
, (1i) initiate, solicit, propose initiate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Alternative Transaction Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Alternative Transaction Proposal or (ii) other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) with Parent, Merger Sub or their respective directors, officers, employees or other Representatives, enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating in connection with, any Alternative Transaction Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Alternative Transaction Proposal. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, if at any time after the date hereof and prior to the receipt of the Company Shareholder Approval, the Company or any Company Subsidiary receives an Alternative Transaction Proposal (other than as a result of its Subsidiaries a breach of this Section 8.4), the Company and the Company Board may (directly or afford to any through their Representatives) (i) contact such Person access and its advisors for the purpose of clarifying the proposal and any material terms thereof and the conditions to and likelihood of consummation, so as to determine whether such proposal is, or is reasonably likely to lead to, a Superior Proposal and (ii) if the Company Board determines in good faith after consultation with its outside legal counsel and independent financial advisor that such Alternative Transaction Proposal is, or is reasonably likely to lead to, a Superior Proposal, the Company Board may (x) furnish information with respect to the businessCompany and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an executed confidentiality agreement with confidentiality provisions no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement then in effect; provided, propertiesthat a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable, assets, books, records and (y) participate in discussions or other negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding such Alternative Transaction Proposal. The Company will within one (1) Business Day provide Parent with all non-public informationinformation regarding the Company that has not previously been provided to Parent that is provided to any Person making such Alternative Transaction Proposal.
(b) The Company Board shall not, directly or indirectly, (i) (A) withdraw (or amend or modify in a manner adverse to Parent) or publicly propose to withdraw (or amend or modify in a manner adverse to Parent), the approval, adoption, recommendation or declaration of advisability of this Agreement or the Merger and the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Transaction Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) (it being understood that a “stop, look and listen” communication by the Company Board to the holders of Common Shares pursuant to Rule 14d-9(f) promulgated under the Exchange Act or the taking of a neutral or no position with respect to any personnelAlternative Transaction Proposal shall not constitute an Adverse Recommendation Change) or (ii) approve, of adopt or recommend, or publicly propose to approve, adopt or recommend, or allow the Company and its Subsidiariesor any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in any such case with the intent principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (other than a confidentiality agreement referred to induce, in Section 8.4(a)) (A) constituting or that could reasonably be expected to result inlead to any Alternative Transaction Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, that, in the case of this clause (ii), the making, submission or announcement of, Company shall not be prohibited from entering into an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected agreement if it concurrently terminates this Agreement pursuant to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Section 10.1(h). Notwithstanding anything to the contrary contained herein, but subject to the Company’s compliance in all material respects with the other provisions of this Section 4.1(a)8.4, as applicable, at any time prior to obtaining the Company Shareholder Approval, the Stockholders and their Representatives Company Board may engage (x) make an Adverse Recommendation Change if there exists material events or changes in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition circumstance not related to an Alternative Transaction Proposal received after that were not known by the Company Board as of the date of this AgreementAgreement and, if and only to the extent that as a result thereof, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and faith, after consultation with its financial advisor and the Company’s outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and its independent financial advisor, that the failure to take such action would reasonably be expected likely to be inconsistent with its fiduciary duties under applicable Law.
(c) From to the date hereof until the earlier shareholders of the termination of the Merger Agreement pursuant to Article VIII thereof and Company under Applicable Law (an “Intervening Event Adverse Recommendation Change”); provided, that the Company Merger Effective Time, subject to Section 8, each Stockholder shall provide Parent with no less than three (solely in its capacity as a stockholder 3) Business Days’ advance notice of the Company) agrees that it will promptly any Intervening Event Adverse Recommendation Change (and, if and for so long as Parent requests, during such three (3) Business Day period the Company and its legal counsel and independent financial advisor shall negotiate in good faith with Parent regarding any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant revisions to the terms of any confidentiality agreement with such Person the Merger proposed by Parent, the purpose of which is to render the Intervening Event Adverse Recommendation Change unnecessary), or Group that is in effect of the date hereof) (y) (i) make an Adverse Recommendation Change related to an Alternative Transaction Proposal if the Company Board determines in good faith, after consultation with the Company’s outside counsel and its independent financial advisor, that such Alternative Transaction Proposal is, or is reasonably likely to lead to, a summary Superior Proposal (a “Superior Proposal Adverse Recommendation Change”) or (ii) in response to a Superior Proposal, resolve to accept such Superior Proposal and cause the Company to terminate this Agreement pursuant to Section 10.1(h); provided, that concurrently with such termination, the Company pays the fees required by Section 10.3; provided, further, that (A) no Superior Proposal Adverse Recommendation Change pursuant to this Section 8.4(b) may be made and (B) no valid termination of this Agreement pursuant to Section 10.1(h) may be made, unless the Company Board shall have first provided prior written notice to Parent that it is prepared to (1) make a Superior Proposal Adverse Recommendation Change or (2) terminate this Agreement pursuant to Section 10.1(h) in response to a Superior Proposal (a “Superior Proposal Notice”), which notice shall (except to the extent prohibited by a confidentiality agreement entered into prior to the date of this Agreement) contain a description of the material terms and conditions of any Acquisition such Superior Proposal and(it being understood and agreed that the delivery of such notice shall not, if in writingand of itself, be deemed to be an Adverse Recommendation Change), and Parent does not make, within three (3) Business Days after receipt of such notice, a copy proposal setting forth revised terms and conditions of this Agreement that would, in the good faith judgment of the Company Board, after consultation with its outside legal counsel and its independent financial advisor, cause the offer previously constituting a Superior Proposal no longer to constitute a Superior Proposal. If Parent has in good faith made such a proposal to the Company during the three (3) Business Day period prior to the Company Board making a Superior Proposal Adverse Recommendation Change pursuant to this Section 8.4(b) or the Company terminating this Agreement pursuant to Section 10.1(h), the Company agrees that the Company and its outside legal counsel and its independent financial advisor shall negotiate in good faith with Parent and its outside legal counsel (so long as Parent and such outside legal counsel are negotiating in good faith) until the expiration of such three (3) Business Day period regarding any such revisions to the terms and conditions of this Agreement set forth in such proposal. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the making of a Superior Proposal Adverse Recommendation Change pursuant to this Section 8.4(b) by the Company Board or the Company terminating this Agreement pursuant to Section 10.1(h) shall require the Company to provide to Parent a new Superior Proposal Notice and a new period of three (3) Business Days.
(c) Notwithstanding anything to the contrary contained herein, the Company or the Company Board shall be permitted to (i) comply with Rule 14d-9 and 14e-2 promulgated under the Exchange Act, including by taking and disclosing to the shareholders of the Company a position with respect to a tender offer by a third party and (ii) waive any “standstill” or similar provision in order to permit a Person to make an Alternative Transaction Proposal, if, in the case of both clauses (i) and (ii), in the good faith judgment of the Company Board, after consultation with outside legal counsel and its independent financial advisor, failure to so comply or waive would be inconsistent with its fiduciary duties to the shareholders of the Company under Applicable Law.
(d) The Company shall advise Parent orally and in writing as promptly as reasonably practicable, and in all events within one (1) Business Day, after the receipt thereof of any Alternative Transaction Proposal or request for information that expressly contemplates or that the Company believes would reasonably be expected to lead to an Alternative Transaction Proposal, the material terms and thereafter conditions of any such Alternative Transaction Proposal (including any changes thereto) and the identity of the Person making any such Alternative Transaction Proposal or request. The Company shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), reasonably informed of the status (including any changes to the material terms and terms conditions thereof) of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofAlternative Transaction Proposal.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier Target agrees that neither it nor any of its Subsidiaries nor any of the termination officers and directors of the Merger Agreement pursuant to Article VIII thereof it or its Subsidiaries shall, and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its all reasonable best efforts to direct cause its and its Subsidiaries' employees, agents and Representatives not to (and shall not authorize any of them to, ) directly or indirectly:
: (1i) solicit, initiate, solicitencourage, propose knowingly facilitate or knowingly encourage induce any inquiry with respect to, or knowingly the making, submission or announcement of, any Acquisition Proposal (as defined in Section 8.3(g)) with respect to itself, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or offer that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;
Proposal with respect to itself, (2iii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to with any Person or Group relating to, with respect to any Acquisition Proposal or any inquirywith respect to itself, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating except as to the Company or any existence of its Subsidiaries or afford to any such Person access to the businessthese provisions, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4iv) approve, endorse or recommend any proposal that constitutes Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 8.3(d) and Section 10.1(g)), or would reasonably be expected to lead to, an Acquisition Proposal;
(5v) enter into any Alternative letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Agreement; or
Proposal or transaction contemplated thereby with respect to itself (6except as permitted pursuant to Sections 8.3(d) authorizeand 10.1(g). Target and its Subsidiaries shall immediately cease any and all existing activities, resolve, agree discussions or commit negotiations with any third parties conducted heretofore with respect to do any of the foregoingAcquisition Proposal with respect to itself.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written (i) As promptly as practicable after receipt of any Acquisition Proposal received after the date of this Agreementor any request for nonpublic information or inquiry which it reasonably believes could lead to an Acquisition Proposal, if Target shall provide Buyer with oral and only to the extent that the Company Board (acting upon the recommendation written notice of the Special Committee) material terms and conditions of such Acquisition Proposal, request or the Special Committee has determined in good faith based on the information then available inquiry, and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making any such proposal (unless such disclosure is prohibited pursuant to the terms Acquisition Proposal, request or inquiry and a copy of any confidentiality agreement all written materials provided in connection with such Person Acquisition Proposal, request or Group that is in effect inquiry. Upon receipt of the date hereof) (y) a summary of the Acquisition Proposal, request or inquiry, Target shall provide Buyer as promptly as practicable oral and written notice setting forth all such information as is reasonably necessary to keep Buyer informed in all material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), respects of the status and terms details (including material amendments or proposed material amendments) of any such Acquisition Proposal Proposal, request or inquiry and the status shall promptly provide to Buyer a copy of any all written materials subsequently provided in connection with such Acquisition Proposal, request or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofinquiry.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct cause the officers, directors, employees, agents and use representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent, representative or Affiliate (collectively as to each Party, the “Representatives”) of the Company or any of its reasonable best efforts to direct its Representatives Subsidiaries not to, directly or indirectly:
(1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6iii) authorize, resolve, agree otherwise knowingly facilitate any effort or commit attempt to do any of the foregoingmake an Acquisition Proposal.
(b) Notwithstanding anything in Section 6.05(a) to the contrary in Section 4.1(a)contrary, prior to the time, but not after, the Stockholders and their Representatives Requisite Stockholder Approval is obtained, the Company may engage (i) provide information in or otherwise participate in discussions or negotiations regarding response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal received after providing for the date acquisition of this Agreementmore than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement and substantially concurrently (and in any event within two (2) Business Days) discloses (and, if and only applicable, provides copies of) any such information to Acquirer to the extent that the Company Board not previously provided to Acquirer; (acting upon the recommendation of the Special Committeeii) engage or the Special Committee has determined participate in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with who has made such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any an unsolicited bona fide written Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.Proposal; or
Appears in 1 contract
Sources: Merger Agreement (BBCN Bancorp Inc)
Acquisition Proposals. 5.1 Until the Expiration Time, (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it Stockholder shall not, and it shall instruct cause its Affiliates and use its reasonable best efforts to direct its and their respective Representatives not to, directly or indirectly:
, (1i) initiate, solicit, propose or take any action to knowingly assist, facilitate or encourage or knowingly facilitate any inquiries or (including by way of furnishing information) the making submission of any inquiry or proposal or offer that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal;
; provided that nothing herein shall prevent such Stockholder from passively receiving and not encouraging Acquisition Proposals not solicited in violation of this Agreement, (2ii) engage in, continue enter into or otherwise knowingly participate in any substantive discussions with or negotiations regardingwith, or provide furnish any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public material nonpublic information relating to the Company or any of its Subsidiaries Subsidiaries, or afford to any such Person access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company and or any of its SubsidiariesSubsidiaries to, or otherwise knowingly cooperate with, any Third Party, in connection with any such case with Acquisition Proposal, (iii) encourage or recommend any other holder of Company Stock to not approve the intent to induce, Merger Agreement or that could reasonably be expected to result in, the making, submission transactions contemplated by the Merger Agreement or announcement of, make any public statement approving or recommending an Acquisition Proposal;
, (4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5iv) enter into any Alternative agreement in principle, letter of intent, memorandum of understanding, acquisition agreement or other Contract providing for or relating to an Acquisition Agreement; or
Proposal or (6v) resolve, authorize, resolve, propose or agree or commit to do any of the foregoing.
foregoing and (b) Notwithstanding anything to the contrary in Section 4.1(a)each Stockholder shall, the Stockholders and shall cause its Affiliates and its and their respective Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreementto, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timecease any solicitations, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any other Person or Group pursuant to Section 4.1(b) and shall provide, in connection with an Acquisition Proposal (other than Strive and its Affiliates).
5.2 Until the Expiration Time, each Stockholder agrees to notify Strive in writing promptly (and in any event within 24 hours) (a) of the receipt of any Acquisition Proposal or any material amendment or modification to the material terms of any Acquisition Proposal and such noticenotice shall include, (x) to the extent then known to such Stockholder, the identity of the Person or Group making the Acquisition Proposal and the material terms and conditions thereof (along with unredacted copies of such proposal Acquisition Proposal and all proposed transaction agreements and other material documents provided in connection therewith), (unless such disclosure is prohibited pursuant b) of any request for material nonpublic information relating to the terms Company, or for access to the business, properties, assets, books or records or personnel of the Company, by any Third Party in connection with an Acquisition Proposal and (c) keep Strive informed on a reasonably current basis of any confidentiality agreement with such Person or Group that is in effect of material changes to the date hereof) (y) a summary of the status and material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofProposal.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall notimmediately cease, and it shall instruct cause its directors, officers, employees, advisors and use its reasonable best efforts to direct its Representatives not agents (collectively, “Representatives”) to, directly immediately cease all existing discussions or indirectly:
negotiations with any person (1other than Parent and its Affiliates and Representatives) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of conducted heretofore with respect to any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal. Except as expressly permitted in this Section 6.07, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, and its Representatives shall not, directly or indirectly, (i) solicit, initiate or knowingly encourage any Acquisition Proposal;
, (2ii) engage inenter into, continue or otherwise participate in any discussions (except to notify such person of the existence of the provisions of this Section 6.07) or negotiations regardingregarding any Acquisition Proposal, (iii) furnish to any person any information concerning the Company, or provide any non-public information or data access to any Person or Group relating tothe properties, books and records of the Company in connection with any Acquisition Proposal Proposal, or (iv) propose, agree or publicly announce an intention to take any of the foregoing actions or any inquiry, proposal or offer that other action which would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary contained in this Section 4.1(a)6.07, if at any time after the date hereof and prior to obtaining the Shareholder Approval, the Stockholders Company or any of its Representatives, receives a written Acquisition Proposal, the Company, the Company Board and their respective Representatives may engage in negotiations and discussions with, and furnish any information and other access to (so long as all such information and access has previously been made available to Parent or otherwise participate is made available to Parent prior to or concurrently with the time such information is made available to such person), any person making such Acquisition Proposal and its Representatives if, and only if, the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, and based on such advice and information provided in such consultations that (i) such Acquisition Proposal is or is reasonably capable of becoming a Superior Proposal and (ii) the failure of the Company Board to furnish such information or access or enter into such discussions or negotiations regarding would reasonably be expected to violate its fiduciary duties to the shareholders of the Company under applicable law; provided that prior to furnishing any material nonpublic information, the Company shall have received from the person making such Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such person as the Confidentiality Agreement is on Parent, which confidentiality agreement shall not prohibit the Company from complying with the terms of this Section 6.07. The Company will promptly, and in any event within 24 hours (x) notify Parent in writing of the receipt of such Acquisition Proposal and (y) communicate the material terms of such Acquisition Proposal to Parent. The Company will keep Parent reasonably apprised of the status of and other matters relating to any such Acquisition Proposal on a bona fide timely basis.
(c) Except as expressly permitted by this Section 6.07, neither the Company nor the Company Board shall (i)(A) withdraw, modify or qualify, or publicly propose to withdraw, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation or (B) approve or recommend, or publicly propose to approve or recommend, to the shareholders of the Company any Acquisition Proposal (any action described in this clause (i) being referred to as a “Change of Recommendation”) or (ii) authorize, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, option agreement, securities purchase agreement, share exchange agreement, or similar agreement with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.07(b) pursuant to and in accordance with the limitations set forth therein).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Shareholder Approval, the Company Board may make a Change of Recommendation or terminate this Agreement pursuant to Section 8.01(d)(ii), if (1) the Company Board receives a written Acquisition Proposal received after the date of this Agreement, if from any person that is not withdrawn and only to the extent that (2) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and faith, after consultation with its independent financial advisor advisors and outside counsel either legal counsel, that such Acquisition Proposal constitutes a Superior Proposal or is reasonably likely to result Proposal; provided that:
(i) the Company Board determines in a Superior Proposal in accordance good faith, after consultation with the Merger Agreement and its outside legal counsel, that the failure of the Company Board to take such action would reasonably be expected to be inconsistent with violate its fiduciary duties to the shareholders of the Company under applicable Lawlaw; and
(ii) with respect to a Superior Proposal:
(1) the Company provides Parent prior written notice at least five (5) business days prior to taking such action, which notice shall state that the Company Board has received a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board has resolved to effect a Change of Recommendation or to terminate this Agreement pursuant to Section 8.01(d)(ii), as applicable, which notice shall specify the basis for such Change of Recommendation or termination, including the material terms of the Superior Proposal (a “Notice of Superior Proposal”) (it being understood that such Notice of Superior Proposal shall not in and of itself be deemed a Change of Recommendation);
(2) during such five (5) business day period, the Company negotiates in good faith with Parent (to the extent that Parent wishes to negotiate) to enable Parent to make an offer that is at least as favorable to the shareholders of the Company so that such Acquisition Proposal would cease to constitute a Superior Proposal; and
(3) at the end of such five (5) business day period (or such earlier time that Parent advises the Company that it no longer wishes to negotiate to amend this Agreement), the Company Board, after taking into account any modifications to the terms of this Agreement and the Merger agreed to by Parent and Bank Subsidiary after receipt of such notice, continues to believe that such Acquisition Proposal constitutes a Superior Proposal. It is understood that and agreed that any amendment to the financial or other material terms of the Acquisition Proposal giving rise to the Notice of Superior Proposal shall constitute a new Acquisition Proposal giving rise to a new five (5) business day response period for Parent.
(ce) From Nothing contained in this Agreement shall prohibit the date hereof until Company or the earlier Company Board from (i) taking and disclosing to the shareholders of the termination Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Merger Agreement pursuant to Article VIII thereof and Company if the Company Merger Effective TimeBoard determines in good faith, subject after consultation with its outside legal counsel, that the failure of the Company to make such disclosure would reasonably be expected to be a violation of applicable law or (iii) informing any person of the existence of the provisions contained in this Section 86.07; it being understood that a “stop, each Stockholder look and listen” communication to the shareholders of the Company contemplated by Rule 14d-9(f) under the Exchange Act (solely in its capacity as a stockholder or any similar communication to the shareholders of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required deemed to notify Parent be or constitute a Change of Recommendation.
(f) As used in this Agreement, “Acquisition Proposal” shall mean any discussions written proposal or negotiations to the extent offer from any person (other than Parent, Bank Subsidiary and any Affiliates thereof) received by Company without violation of Section 6.07(a) by the Company has notified Parent thereofor its representatives, relating to, or that is reasonably expected to lead to, any direct or indirect purchase or acquisition, in a single transaction or series of related transactions, of (A) any assets or businesses of the Company that constitute 25% or more of the Company’s consolidated assets or (B) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of 25% or more of the total outstanding voting securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer, exchange offer or similar transaction.
Appears in 1 contract
Sources: Merger Agreement (Eagle Bancorp Inc)
Acquisition Proposals. (a) From Subject to Section 4.2(b) and after Section 4.2(c), at all times during the period from the date hereof until of this Agreement to the earlier of the Effective Time or the termination of the Merger this Agreement pursuant to Article VIII thereof and VII, the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, shall cause its Subsidiaries, directors and it officers to not, and shall instruct its other Representatives and use its reasonable best efforts the Unit holders named on Section 4.2(a) of the Company Disclosure Letter to direct its Representatives not to(i) solicit, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage (including by way of furnishing nonpublic information) or knowingly take any other action to facilitate any inquiries or the making of any proposal or offer (including any proposal or offer to the Members) that constitutes, or would may reasonably be expected to lead to, any an Acquisition Proposal;
, (2ii) engage inenter into, maintain, continue or otherwise engage or participate in any discussions or negotiations regarding, or provide furnish to any non-public Person (other than Parent, Merger Sub or their respective Representatives or the Company’s Representatives) any information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal, (iii) agree to, approve, endorse, recommend, consummate or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or (other than iv) resolve, propose or agree, or authorize any of its Representatives, to state do any of the foregoing. The Company acknowledges and agrees that the terms doing of any of the foregoing by any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 4.1 prohibit such discussions4.2(a);
(3) furnish . The Company shall, shall cause its Subsidiaries, directors and officers to, and shall instruct its other Representatives to, immediately cease and cause to be terminated any and all discussions and negotiations with any Person with respect to any Acquisition Proposal, and shall deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Acquisition Proposal, effective on the date hereof. The Company shall not, and shall not permit any Subsidiary of the Company to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company shall, to the extent possible, promptly take all steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement; provided that the Company Board may provide such release or waiver to make an acquisition proposal if it first determines in good faith, after consultation with outside legal counsel, that the failure to grant such consent or authorization would be inconsistent with the Company Board’s fiduciary duties under applicable Law (other than Parent including, for the avoidance of doubt, Section 3.10(a) of the Operating Agreement). The Company shall as promptly as reasonably practicable request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any of its AffiliatesSubsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(i) Notwithstanding the provisions of Section 4.2(a), Section 4.2(b)(i) or anything else in this Agreement to the contrary, at any time prior to the end of the Minimum Waiting Period, the Company may (subject to compliance with this Section 4.2(b)(i)), in response to an inquiry regarding or constituting an Acquisition Proposal from any Person that the Company Board determines in good faith is reasonably capable of making a bona fide Acquisition Proposal, provide a copy of the Confidential Information Memorandum to such Person pursuant to a Qualifying Confidentiality Agreement; provided that the foregoing shall not permit the Company to furnish additional confidential information with respect to the Company and its Subsidiaries or participate in discussions and negotiations with such Person except in compliance with Section 4.2(b)(i); provided further that the Company shall have provided written notice to Parent of its intent to furnish a copy of the Confidential Information Memorandum to such Person, such notice to include the identity of such Person.
(ii) Notwithstanding the provisions of Section 4.2(a) or Section 4.2(b)(i) or anything else in this Agreement to the contrary, at any time prior to the end of the Minimum Waiting Period, the Company may, subject to compliance with this Section 4.2(b)(i), in response to an unsolicited, bona fide written Acquisition Proposal from any Person after the date of this Agreement that did not arise from a breach by the Company, or any of its Subsidiaries, officers, directors or employees of this Section 4.2 that the Company Board determines in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes or may reasonably be expected to lead to a Superior Proposal, and after the Company Board having determined in good faith, after consultation with outside legal counsel, that failure to take the following actions would be inconsistent with the Company Board’s fiduciary duties under applicable Law (including, for the avoidance of doubt, Section 3.10(a) of the Operating Agreement), (A) furnish confidential information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and such Person’s Representatives) pursuant to a customary standstill and confidentiality agreement (which need not restrict such Person from making a confidential Acquisition Proposal to the Company Board but which shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) on terms no less favorable in any material respect to the Company than those contained in the Confidentiality Agreement (a “Qualifying Confidentiality Agreement”); provided, that the Company shall have provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to first (with respect to such Person) taking any such action; provided further that the Company shall simultaneously make available to Parent any information concerning the Company and its Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and which information was not previously made available to Parent or its Representatives and (B) participate in discussions and negotiations with the Person making such unsolicited bona fide written Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal. Notwithstanding the foregoing, the Company shall not provide or be required to provide any commercially sensitive non-public information to any competitor in connection with the actions permitted or required by clause (A) of this Section 4.2(b)(i), except in a manner consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Acquisition Proposals prior to the date of this Agreement.
(iii) The Company shall, as promptly as reasonably practicable (and in any event, within twenty-four (24) hours), advise Parent orally and in writing of the receipt of any proposals, inquiries or offers with respect to an Acquisition Proposal after the date of this Agreement, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or afford to any such Person for access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company and or any of its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and . Such notice shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of indicate the material terms and conditions of any such Acquisition Proposal and(including, if in writingapplicable, a copy thereof copies of any written requests, proposals or offers, including proposed agreements) and thereafter the identity of the Person or group of Persons making any such Acquisition Proposal. The Company shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), reasonably informed of the status of any such discussions or negotiations, and terms material details of any such Acquisition Proposal and provide Parent with any documents describing or evidencing any such Acquisition Proposal sent by or provided to the status Company or any of its Subsidiaries or Representatives as promptly as reasonably practicable (and in any event within twenty-four (24) hours after receipt or delivery thereof). The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board at which the Company Board is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board in respect of such meeting).
(i) The Company Board and each committee thereof shall not (A) withhold, withdraw, qualify, amend or discussions modify in any manner adverse to Parent or negotiations. Notwithstanding the foregoingMerger Sub, or propose publicly to withdraw, qualify, amend or modify, the Stockholders Company Recommendation with respect to this Agreement or the Merger or resolve or agree to take any such action or make any public statement inconsistent with the Company Recommendation, (B) recommend, adopt or approve any Acquisition Proposal, or propose publicly or otherwise to recommend, adopt or approve any Acquisition Proposal or resolve or agree to take any such action, (C) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, or other similar agreement providing for an Acquisition Proposal (other than a Qualifying Confidentiality Agreement) or (D) (x) fail to publicly recommend against any Acquisition Proposal or (y) fail to publicly reaffirm the Company Recommendation, in the case of each of clause (x) and (y), within five (5) Business Days after Parent so requests in writing, which request may be made only once (any action described in clauses (A) through (D) referred to herein as a “Change of Recommendation”).
(ii) Notwithstanding this Section 4.2(c) or anything else in this Agreement to the contrary, the Company Board may (1) at any time prior to the expiration of the Minimum Waiting Period, in response to an Intervening Event, take or fail to take, as applicable, the actions specified in clauses (A) or (D) of Section 4.2(c)(i) (an “Intervening Event Change of Recommendation”) if the Company Board determines in good faith, after consultation with its outside counsel, that it is required to do so in order to comply with its fiduciary duties under applicable Law (including, for the avoidance of doubt, Section 3.10(a) of the Operating Agreement) or (2) at any time prior to the expiration of the Minimum Waiting Period, in response to an unsolicited bona fide written Acquisition Proposal from any Person that did not arise from any breach of this Section 4.2 by the Company, or any of its Subsidiaries, officers, directors or employees, that is not withdrawn and that the Company Board concludes in good faith, after consultation with an independent financial advisor and outside legal counsel, constitutes a Superior Proposal, terminate this Agreement pursuant to Section 7.3(a) in order to cause the Company to enter into a definitive agreement providing for a Superior Proposal; provided that (x) no Intervening Event Change of Recommendation may be made and (y) the Company shall not exercise its right to terminate this Agreement pursuant to Section 7.3(a) until after (A) the period of five (5) Business Days or, in the case of a material revision to an Acquisition Proposal with respect to which prior written notice to Parent has been provided, the period shall be three (3) Business Days (the “Notice Period”) following Parent’s receipt of written notice from the Company advising Parent, in the case of clause (x) above, of the reasons for such Intervening Event Change of Recommendation, including a description of the Intervening Event in reasonable detail, and, in the case of clause (y) above, that the Company Board has received a Superior Proposal (or any material modification of a Superior Proposal), specifying the information required to be include in any notice required to be delivered to Parent under Section 4.2(b)(iii) and stating that the Company Board has resolved to exercise its right to terminate this Agreement pursuant to Section 7.3(a) (such notice, a “Match Notice”) (B) the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Intervening Event would cease to necessitate an Intervening Event Change of Recommendation or such Acquisition Proposal would cease to constitute a Superior Proposal; provided that, in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to notify deliver a new written notice to Parent and to comply with the requirements of this Section 4.2 (including this Section 4.2(c)(ii)) with respect to such new written notice and the revised Superior Proposal contemplated thereby; (C) (1) with respect to clause (x) above, a determination by the Company Board that the Intervening Event described in such written notice continues to necessitate an Intervening Event Change of Recommendation and (2) with respect to clause (y) above, a determination by the Company Board that the Acquisition Proposal described in such written notice constitutes a Superior Proposal, in the case of clauses (1) and (2) above after taking into account any changes to this Agreement proposed by Parent during such Notice Period and (D) in the event of a termination of this Agreement pursuant to the foregoing subclause (c)(ii), the Company shall have paid the Termination Fee pursuant to Section 7.5 to Parent prior to or concurrently with such termination.
(d) Nothing contained in this Agreement shall prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under U.S. federal or state Law, including taking and disclosing to its Members a position contemplated by Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Members) or (ii) making accurate disclosure to the Members of any discussions factual information regarding the business, financial condition or negotiations results of operations of the Company, Parent or Merger Sub or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal (and no such disclosure shall be deemed to the extent be a Change of Recommendation); provided, however, that the Company has notified Parent thereofBoard or any committee thereof shall not make a Change of Recommendation except in accordance with Section 4.2(c)(ii).
Appears in 1 contract
Sources: Merger Agreement (Textron Inc)
Acquisition Proposals. (a) From and after the date hereof --------------------- until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timethis Agreement, subject to Section 8neither Ironbound or Ironbound Bank, each nor any of the Stockholders hereby agrees that it shall nottheir respective officers, and it shall instruct and use directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by Ironbound or any of its reasonable best efforts to direct its Representatives not tosubsidiaries), will, directly or indirectly:
(1) , initiate, solicit, propose solicit or knowingly encourage (including by way of furnishing non-public information or knowingly assistance), or facilitate knowingly, any inquiries or the making of any proposal or offer that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;
Proposal (2) engage inas defined below), or enter into or maintain or continue or otherwise participate in any discussions or negotiations regarding, negotiate with any person or provide any non-public information entity in furtherance of such inquiries or data to any Person or Group relating to, any obtain an Acquisition Proposal or agree to or endorse any inquiryAcquisition Proposal, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms authorize or permit any of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent its officers, directors or employees or any of its Affiliatessubsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its subsidiaries to take any such action, and Ironbound shall notify RCFC orally (within one business day) any non-public information and in writing (as promptly as practicable) of all of the relevant details relating to the Company all inquiries and proposals which it or any of its Subsidiaries subsidiaries or afford any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such Person access matters and if such inquiry or proposal is in writing, Ironbound shall deliver to RCFC a copy of such inquiry or proposal promptly; provided, however, that nothing contained in this Section 4.1 shall prohibit the business, properties, assets, books, records or other non-public informationBoard of Directors of Ironbound from (i) furnishing information to, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter entering into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a with any person or entity that makes an unsolicited written, bona fide written Acquisition Proposal received after the date of this Agreementproposal, if to acquire Ironbound pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that that, (A) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with Directors of Ironbound receives a written opinion from its independent financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely that such proposal may be superior to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as from a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.42
Appears in 1 contract
Acquisition Proposals. (a) From The Company will not, and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, will cause each of the Stockholders hereby agrees that it shall notCompany Subsidiaries, the Company’s directors, officers and regional chief executive officers and Lazard not to, and it shall instruct and will use its reasonable best efforts to direct its cause each of the employees and other Representatives of the Company and the officers, directors, employees and Representatives of the Company Subsidiaries not to, directly or indirectly:
, (1i) initiate, solicit, propose initiate or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal that constitutes or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
to an Alternative Transaction Proposal or (2ii) engage inenter into, continue or otherwise participate in any discussions (other than with Parent, Merger Sub or their respective directors, officers or employees or Representatives) or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person any information with respect to, or otherwise cooperate in any way with, any Alternative Transaction Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (other than but not after), in response to an unsolicited bona fide written Alternative Transaction Proposal, the Company may, subject to compliance with this Section 8.4, and after giving Parent or any written notice of its Affiliatessuch action, (x) any non-public furnish information relating with respect to the Company or any of its and the Company Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or Person making such unsolicited bona fide written Alternative Transaction Proposal pursuant to any personnel, of an executed confidentiality agreement containing terms that are no less favorable to the Company and its Subsidiaries, than those contained in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Confidentiality Agreement; or
provided that a copy of all such information not previously provided to Parent (6or its Representatives) authorizeis provided as promptly as practicable to Parent, resolve, agree or commit to do any of the foregoing.
and (by) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a with the Person making such unsolicited bona fide written Acquisition Alternative Transaction Proposal received after the date of this Agreement(and its advisors) regarding such unsolicited bona fide written Alternative Transaction Proposal, if and only to the extent that that, (1) the Company has not breached this Section 8.4, (2) prior to taking any action described in clauses (x) or (y) above, the Company Board (acting upon the recommendation of and the Special Committee) determines in good faith after consultation with outside legal counsel that taking such action is necessary to comply with the directors’ fiduciary duties under Applicable Law, and (3) in each such case referred to in clauses (x) or (y) above, the Company Board (and the Special Committee Committee) has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel that either (i) such Alternative Transaction Proposal constitutes a Superior Proposal or (ii) there is reasonably likely to a reasonable likelihood that such Alternative Transaction Proposal will result in a Superior Proposal.
(b) Neither the Company Board nor the Special Committee shall, directly or indirectly, (i) (A) withdraw or qualify (or amend or modify in a manner adverse to Parent) or publicly propose to withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such board of directors or any such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Transaction Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve or recommend, or publicly propose to approve or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (A) constituting or that could reasonably be expected to lead to any Alternative Transaction Proposal (other than a confidentiality agreement referred to in Section 8.4(a) or (B) requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided that the Company shall not be prohibited from entering into an agreement referred to in and in accordance with this Section 8.4(b). Notwithstanding anything to the Merger Agreement contrary set forth in this Section 8.4(b), prior to the time, but not after, that the Company Stockholder Approval is obtained, if the Company receives an unsolicited bona fide written Alternative Transaction Proposal which the Company Board (and the failure Special Committee) concludes in good faith after consultation with outside legal counsel and its financial advisors constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent including pursuant to this Section 8.4(b), the Company Board (and the Special Committee) may, at any time prior to obtaining the Company Stockholder Approval, if it determines in good faith, after consultation with outside counsel, that such action is necessary to comply with its fiduciary duties to the stockholders of the Company under Applicable Law, (x) make an Adverse Recommendation Change or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Company Termination Fee, as required by Section 10.3; and provided, further, that neither the Company Board nor the Special Committee may make an Adverse Recommendation Change in a manner adverse to Parent pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless (A) the Company shall not have breached this Section 8.4 and (B) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Notice Period”), of its intention to take such action would reasonably be expected with respect to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timesuch Superior Proposal, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and which notice shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of specify the material terms and conditions of any Acquisition such Superior Proposal and(including the per share value of the consideration offered therein and the identity of the party making such Superior Proposal), if in writing, and shall have contemporaneously provided a copy thereof of the relevant proposed transaction agreements with the party making such Superior Proposal and thereafter other material documents, including the definitive agreement with respect to such Superior Proposal (the “Alternative Acquisition Agreement”); and (C) prior to making such make an Adverse Recommendation Change or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Alternative Acquisition Agreement ceases to constitute a Superior Proposal. In the event of any material revisions (or revisions that in the aggregate are material) are made to the initial Superior Proposal, the Company shall deliver to Parent within one (1) Business Day written notice of any such revisions (including a detailed description thereof) and a new Notice Period shall be deemed to have commenced with respect to such modified Superior Proposal on the date of delivery of such notice to Parent. The Company shall keep Parent informedapprised as to the status of any material developments, discussions and negotiations concerning any potential Alternative Acquisition Agreement on a prompt current basis (and, and in any event, within forty-eight one (481) hours), of Business Day) after the status and terms occurrence of any such Acquisition Proposal development, discussion or negotiation.
(c) Notwithstanding anything to the contrary contained herein, the Company or the Company Board (including the Special Committee) shall be permitted to comply with Rule 14d-9 and 14e-2 promulgated under the status Exchange Act, including by taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party; provided that any such disclosure other than (i) a “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to the shareholders of the Company), (ii) an express rejection of any such applicable Alternative Transaction Proposal or discussions or negotiations. Notwithstanding (iii) an express reaffirmation of its recommendation to its stockholders in favor of the foregoingMerger shall be deemed to be an Adverse Recommendation Change.
(d) In addition to and without limiting the obligations of the Company in Section 8.4(a) and Section 8.4(b), the Stockholders Company shall promptly notify Parent orally and in writing of any Alternative Transaction Proposal that is not be otherwise required to notify be noticed to Parent under such sections, including a summary of the terms and condition thereof.
(e) The Company agrees that (i) it will and will cause the Company Subsidiaries, and its and their officers, directors, agents, representatives and advisors to, cease immediately and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to the extent any Alternative Transaction Proposal, and (ii) it will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Alternative Transaction Proposal. The Company agrees that it will promptly inform its and the Company has notified Parent thereofSubsidiaries’ respective directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 8.4.
Appears in 1 contract
Sources: Merger Agreement (Usi Holdings Corp)
Acquisition Proposals. (a) From Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. New York City time on the thirty-fifth (35th) calendar day after the date hereof until of this Agreement (the earlier of “Solicitation Period End Date”), the termination of the Merger Agreement pursuant to Article VIII thereof Company (and the Company Merger Effective TimeBoard or any committee thereof, subject to Section 8, each of including the Stockholders hereby agrees that it Special Committee) and the Company Subsidiaries and their respective Representatives shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not have the right to, directly or indirectly:
: (1i) initiate, solicit, propose facilitate, whether publicly or knowingly otherwise, and encourage any Acquisition Proposal or knowingly facilitate any inquiries inquiry, discussion offer or the making of any proposal or offer request that constitutes, or would could reasonably be expected to lead to, any an Acquisition Proposal;
; (2ii) provide access to non-public information to any Person pursuant to an Acceptable Confidentiality Agreement executed by the Person receiving such non-public information (provided that any information regarding any Ground Lease will have the ground owner information redacted); (iii) grant a waiver of or terminate any “standstill” or similar obligation of any Third Party with respect to the Company and the Company Subsidiaries solely to the extent necessary to permit such Third Party to make or amend an Acquisition Proposal or otherwise engage with the Company in discussions regarding an Acquisition Proposal or a proposal that could reasonably be expected to lead to an Acquisition Proposal; and (iv) engage inor enter into, continue or otherwise participate in any discussions or negotiations regarding, with any Persons or provide any non-public information or data groups of Persons with respect to any Person or Group relating to, any Acquisition Proposal or otherwise cooperate with, or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposal.
(b) Subject to Section 5.03(e), from the time immediately following the Solicitation Period End Date (and, with respect to subclauses (iii) and (iv) of this Section 5.03(b), from and after the execution and delivery of this Agreement) until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company (and the Company Board or any committee thereof, including the Special Committee) shall not, and shall cause the Company Subsidiaries and shall direct its and their respective Representatives not to, and the Series A Holders shall not and shall direct their respective Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly engage in or knowingly facilitate or knowingly encourage the submission of any inquiry, proposal discussion, offer or offer request that would constitutes, or could reasonably be expected to lead to to, an Acquisition Proposal Proposal; (ii) other than to state that solely informing Persons of the terms existence of this Section 4.1 prohibit such discussions);
(3) 5.03, enter into, continue, or participate in any discussions or negotiations with, furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its the Company Subsidiaries or afford to any such Person access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company and its Subsidiariesor any of the Company Subsidiaries to any Third Party in connection with an Acquisition Proposal or any inquiry, in any such case with the intent to inducediscussion, offer proposal or request that constitutes, or that could reasonably be expected to result inlead to an Acquisition Proposal; (iii) except substantially concurrently with a termination under, and as contemplated by, Section 7.01(d)(ii), enter into any Contract contemplating an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or requiring the Company to abandon or terminate its obligations under this Agreement (an “Alternative Acquisition Agreement”); or (iv) (A) qualify, withhold, withdraw or modify, or publicly propose to qualify, withhold, withdraw or modify, in a manner adverse to Parent and/or Merger Sub, the makingCompany Board Recommendation, submission (B) approve or announcement ofrecommend, or publicly propose to approve or recommend, to the holders of Company Capital Stock, an Acquisition Proposal;
, or (C) fail to recommend against any Acquisition Proposal which is subject to Regulation 14D or the Exchange Act in any Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal (any action described in this clause (iv), an “Adverse Recommendation Change”). Except as expressly permitted pursuant to Section 5.03(c) and subject to the following sentence, on the Solicitation Period End Date (and thereafter), the Company shall, and shall cause the Company Subsidiaries and its and their Representatives to, and the Series A Holders shall, and shall cause their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives with respect to any Acquisition Proposal. Notwithstanding the commencement of the obligations under this Section 5.03(b), if, as of the Solicitation Period End Date, the Company is engaged in discussions or negotiations with one or more Excluded Parties regarding a Qualified Acquisition Proposal, from and after the Solicitation Period End Date until 11:59 p.m. (New York City time) on the tenth (10th) calendar day after Solicitation Period End Date (the “Window-Shop End Date”), the Company (and the Company Board or any committee thereof, including the Special Committee, (x) may continue to engage in the activities described in clauses (i) and (ii) of the first sentence of this Section 5.03(b) with any Excluded Party and (y) is not required to comply with the immediately preceding sentence, in each case, with any Excluded Party (but only for so long as such Excluded Party remains an Excluded Party), including with respect to any amended or revised Acquisition Proposal submitted by that Excluded Party; provided, however, that if the Company Board (or any committee thereof, including the Special Committee) determines as contemplated by Section 5.03(e)(iii) that any Qualified Acquisition Proposal constitutes a Superior Proposal and the Company delivers the notice contemplated by Section 5.03(e)(iv) in respect of such Acquisition Proposal on or before the Window-Shop End Date (as may be extended or further extended in accordance with this Section 5.03(b)), then the Window-Shop End Date shall be extended (but solely with respect to such Acquisition Proposal (and any amendment, modification or supplement thereto) for two (2) calendar days following the final four (4) approveBusiness Day or two (2) Business Day period, endorse as applicable, contemplated by Section 5.03(e)(iv) and Section 5.03(e)(v) (but only so long as the Company is in material compliance with Section 5.03(e))).
(c) Notwithstanding anything in this Section 5.03 to the contrary, at any time after the execution of this Agreement and prior to the later of (x) the Solicitation Period End Date and (y) the Window-Shop End Date (as may be extended or recommend further extended in accordance with Section 5.03(b)), if any, in response to a bona fide written Acquisition Proposal (or any proposal amendment, modification or supplement thereto) from any Third Party that constitutes is not withdrawn and that did not result from a material breach of Section 5.03(b) and that the Company Board, or would a duly authorized committee thereof, including the Special Committee, determines in good faith (after consultation with the Company’s or such committee’s financial advisor and outside legal counsel) constitutes, or could reasonably be expected to lead to, an a Superior Proposal (any such Acquisition Proposal;
, including those received on or before the Solicitation Period End Date, a “Qualified Acquisition Proposal”), the Company, directly or indirectly through its Representatives, or the Series A Holders, may (5i) enter into any Alternative Acquisition Agreement; or
engage in negotiations or discussions with such Third Party and its Representatives and/or (6ii) authorize, resolve, agree furnish to such Third Party or commit its Representatives public or non-public information relating to do the Company or any of the foregoing.
(b) Company Subsidiaries, subject and pursuant to an Acceptable Confidentiality Agreement executed by such Third Party prior to receiving such non-public information; provided that any such non-public information furnished to any such Third Party or its Representatives shall have been previously provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such Third Party or its Representatives. Notwithstanding anything to the contrary set forth in this Section 4.1(a)5.03, prior to making the determination required by the foregoing sentence that such Acquisition Proposal (or any such amendment, modification or supplement thereto) constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Stockholders Company and their Representatives its Representatives, or the Series A Holders, may engage in or otherwise participate in discussions or negotiations regarding a bona fide written contact the Person making such Acquisition Proposal received after to clarify the material terms and conditions of such Acquisition Proposal.
(d) From the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of (x) the Effective Time and (y) the termination of the Merger this Agreement pursuant to Article VIII thereof and in accordance with its terms, the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity shall notify Parent as a stockholder of the Company) agrees that it will promptly soon as reasonably practicable (and, in any event, within forty-eight (48) hours) notify Parent in writing following after receipt by the Company (or any discussions of its Representatives) of any Acquisition Proposal (or negotiations with any Person material written amendment, modification or Group pursuant to Section 4.1(b) and supplement thereto), which notice shall provide, in connection with such notice, include (xi) the identity of the Person or Group making such proposal Third Party, (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (yii) a written summary of the material terms of such Acquisition Proposal (or any material amendment, modification or supplement thereto) if written (including, for the avoidance of doubt, any documents relating to the financing of such Acquisition Proposal (portions of each of the foregoing relating to fees or “flex” terms may be redacted to the extent customary and conditions required to comply with confidentiality provisions)), including any written draft documents or term sheets submitted in connection therewith and any amendment, modification or supplement thereto, and (iii) reasonably detailed summaries of any oral Acquisition Proposal and(or any material amendment, if in writingmodification or supplement thereto) (including, a copy thereof for the avoidance of doubt, reasonably detailed summaries of the financing of such Acquisition Proposal). The Company shall notify Parent as soon as reasonably practicable (and thereafter shall keep Parent informed, on a prompt basis (and, in any event, event within forty-eight (48) hours) of any changes to the material terms and conditions of such Acquisition Proposal. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any Third Party subsequent to the date of this Agreement that prohibits the Company from providing any information referenced in this Section 5.03(d) to Parent.
(e) From and after the execution and delivery of this Agreement until the termination of this Agreement in accordance with its terms, the Company (and the Company Board or any committee thereof, including the Special Committee) shall not (x) make an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 7.01(d)(ii), unless, prior to the later of (x) the Solicitation Period End Date and (y) the Window-Shop End Date (as may be extended or further extended in accordance with Section 5.03(b)), if any:
(i) the Company has complied in all material respects with this Section 5.03;
(ii) the Company or any of its Representatives receives a Qualified Acquisition Proposal that has not been withdrawn;
(iii) the Company Board (or any committee thereof) determines in good faith, after consultation with the Company’s (or such committee’s) financial advisor and outside legal counsel, that such Qualified Acquisition Proposal constitutes a Superior Proposal (which shall be determined without giving effect to the execution, delivery or existence of the status Written Consent or any other stockholder or corporate action in connection with the stockholder approval of the Merger);
(iv) the Company provides a written notice to Parent and Merger Sub that the Company will take such action on or after the fourth (4th) Business Day following the delivery of such notice with respect to such Qualified Acquisition Proposal (in which case such notice shall have attached thereto the most current version of any proposed agreement or reasonably detailed summary of the material terms of any such proposal and the identity of the Third Party making the Qualified Acquisition Proposal), and during the four (4) Business Day period following delivery of such notice the Series A Holders and the Company shall, and shall use commercially reasonable efforts to cause its Representatives to, negotiate in good faith with Parent, Merger Sub and their respective Representatives (to the extent Parent, Merger Sub or their Representatives desire to so negotiate) to make adjustments and/or modifications to the terms and conditions of this Agreement in order to improve such terms and conditions so that the Qualified Acquisition Proposal ceases to constitute a Superior Proposal; provided, however, that any material amendment to the financial terms or any other material amendment to any such Qualified Acquisition Proposal shall require a new written notice to be delivered by the Company to Parent and Merger Sub and the status of any such or discussions or negotiations. Notwithstanding the foregoingCompany shall, the Stockholders shall not with each successive new notice, be required to notify Parent comply again with the requirements of this Section 5.03(e)(iv) (provided, however, that references to the four (4) Business Day period above shall be deemed to be references to a two (2) Business Day period); and
(v) following such four (4) Business Day period (and any additional two (2) Business Day period), the Company Board (or any committee thereof) again determines in good faith, after consultation with the Company’s (or such committee’s) financial advisor and outside legal counsel, that such Qualified Acquisition Proposal continues to constitute a Superior Proposal (after taking into account and/or giving effect to any binding adjustments or modifications proposed by Parent, Merger Sub or their Representatives and which shall be determined without giving effect to the execution, delivery or existence of the Written Consent or any other stockholder or corporate action in connection with the stockholder approval of the Merger).
(f) Nothing contained in this Agreement shall be deemed to prohibit the Company or the Company Board (including any duly constituted committee thereof), directly or indirectly through its Representatives, from (i) complying with its disclosure obligations under applicable Law, including taking and disclosing to the holders of Company Capital Stock a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders), (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (iii) making any disclosure to the holders of Company Capital Stock if the Company Board (or any committee thereof) determines in good faith, after consultation with its (or such committee’s) outside legal counsel, that the failure to make such disclosure would be inconsistent with applicable Law (which determination shall be made without giving effect to the execution, delivery or existence of the Written Consent or any other stockholder or corporate action in connection with the shareholder approval of the Merger) or (iv) making accurate disclosure to the holders of Company Capital Stock of any discussions factual information regarding the business, financial condition or negotiations to results of operations of the extent Company; provided, however, that (A) any such disclosure (other than issuance by the Company has notified Parent thereofof a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board, in connection with such communication, publicly reaffirms the Company Board Recommendation in connection with such action or disclosure, and (B) in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by this Section 5.03.
(g) As used in this Agreement,
Appears in 1 contract
Acquisition Proposals. (a) From Subject to Section 4.1(b), Section 4.1(c), Section 4.1(d), Section 4.1(e) and Section 4.1(f), from and after the date hereof of this Agreement until the earlier of the First Closing or the termination of the Merger this Agreement pursuant to Article VIII thereof and in accordance with its terms, (i) neither the Company Merger Effective Timenor any of its Subsidiaries shall, subject to Section 8, each nor shall the Company or any of its Subsidiaries authorize or knowingly permit any of the Stockholders hereby agrees that it shall notdirectors of the Company, and it shall instruct and use the officers or employees of the Company, or any investment bankers, attorneys, accountants or other advisors or other Representatives retained by the Company or its reasonable best efforts to direct its Representatives not Subsidiaries (collectively, “Company Representatives”) to, directly or indirectly:
, (1A) initiate, solicit, propose or knowingly encourage initiate or knowingly facilitate any inquiries or encourage the making submission of any inquiry, proposal or offer that which constitutes, or would reasonably be expected expect to lead toresult in, any an Acquisition Proposal;
, (2B) engage inenter into, continue or otherwise participate in any discussions or negotiations regardingwith, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to to, any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, Third Party in any such case connection with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
, (4C) approve, endorse recommend, publicly declare advisable or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative agreement in principle, letter of intent, merger agreement, acquisition agreement, joint venture agreement or other similar agreement relating to an Acquisition Agreement; or
Proposal (6other than any Acceptable Confidentiality Agreement entered into in accordance with this Section 4.1), or (D) authorize, resolve, agree to or commit propose publicly to do any of the foregoing, and (ii) the Board of Directors shall not (x) fail to make, withdraw or modify in a manner adverse to the Purchaser (or publicly propose to withdraw, modify or qualify in any manner adverse to the Purchaser) the Company Board Recommendation, (y) adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of, an Acquisition Proposal, or (z) fail to include in the Proxy Statement the Company Board Recommendation (any of the foregoing in this clause (ii), an “Adverse Recommendation Change;” provided, that, for the avoidance of doubt, but subject to compliance by the Company with the terms of this Section 4.1, none of (1) the determination by the Board of Directors in accordance with Section 4.1(f) that an Acquisition Proposal constitutes a Superior Proposal, (2) the disclosure by the Company of such determination in accordance with Section 4.1(f), or (3) the delivery by the Company of the notice required by Section 4.1(e) shall constitute an Adverse Recommendation Change).
(b) Notwithstanding anything contained in this Agreement to the contrary in Section 4.1(a)contrary, the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received if at any time after the date of this AgreementAgreement and prior to obtaining the Company Stockholder Approval, if the Company, any Subsidiary of the Company or any of the Company Representatives receives a written Acquisition Proposal from any Third Party that did not result from a breach of Section 4.1(a) and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined Directors determines in good faith based on the information then available and (I) to be bona fide, (II) after consultation with its financial advisor and outside counsel either constitutes legal counsel, constitutes, or would reasonably be expected to result in, a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance (III) after consultation with the Merger Agreement and its outside legal counsel, that the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Company’s directors under applicable Law, then the Company, directly or indirectly through the Company Representatives, may (i) engage in negotiations or discussions with such Third Party and its Representatives and actual or potential sources of financing (including, as a part thereof, making any counterproposal), and (ii) furnish to such Third Party or its Representatives and actual or potential sources of financing non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided, that, prior to or substantially concurrently with the time it is made available to such Third Party, the Company shall make available to the Purchaser any non-public information relating to the Company or its Subsidiaries that is made available to such Third Party and that was not previously made available to the Purchaser.
(c) Notwithstanding anything contained in this Agreement to the contrary at any time prior to obtaining the Company Stockholder Approval, if (A) an Intervening Event has occurred, and (B) the Board of Directors determines in good faith and after taking into account any revisions to the terms of this Agreement that may be inconsistent offered in writing by Purchaser in accordance with this Section 4.1(c), after consultation with outside legal counsel and its financial advisors, that the failure to make an Adverse Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under applicable Law, then the Board of Directors may make an Adverse Recommendation Change; provided, that, if the Company is making an Adverse Recommendation Change in response to any Intervening Event (other than an Acquisition Proposal, which shall be governed by Section 4.1(f)), then the Board of Directors of the Company shall not make such Adverse Recommendation Change unless the Company has (i) provided to the Purchaser at least three (3) Business Days’ prior written notice (it being understood and agreed that any material change in facts or circumstances relating to an Intervening Event shall require a new notice and a new three (3) Business Day period) that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Board of Directors to take such action and (ii) during such three (3) Business Day period, if requested by the Purchaser, engaged in good faith negotiations with the Purchaser to amend this Agreement in such a manner that obviates the need for such Adverse Recommendation Change.
(cd) From In addition, nothing contained herein shall prevent the date hereof until Board of Directors from (i) complying with Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the earlier Exchange Act with regard to an Acquisition Proposal; provided, that any such action taken or statement made that relates to an Acquisition Proposal shall not be deemed to be an Adverse Recommendation Change if the Board of the termination of the Merger Agreement pursuant to Article VIII thereof and Directors reaffirms the Company Merger Effective Time, subject to Section 8, each Stockholder (solely Board Recommendation in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions such statement or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, action or (xii) making any disclosure to the identity stockholders of the Person Company if the Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties under applicable Law; provided further that in no event shall the Board of Directors be permitted to make any Adverse Recommendation Change except in accordance with Section 4.1(c) or Group making such proposal Section 4.1(f) hereunder, as applicable.
(unless such disclosure is prohibited pursuant e) The Company shall notify the Purchaser orally and in writing promptly (but in no event later than 24 hours) after receipt by the Company of any Acquisition Proposal, any proposals or inquiries that would reasonably be expected to lead to an Acquisition Proposal, or any inquiry or request for nonpublic information relating to the terms Company or any of its Subsidiaries by any confidentiality agreement with Person who has made, or has expressly indicated that such Person or Group that is in effect of contemplating making, any Acquisition Proposal. Any such notice shall identify the date hereof) (y) a summary of Third Party making, and the material terms and conditions of (or the nature of), any such Acquisition Proposal, inquiry, or request and shall attach a copy of any written Acquisition Proposal (or summary of the terms of any oral Acquisition Proposal) and a copy of all written materials provided by such Person with respect to such Acquisition Proposal. The Company shall keep the Purchaser reasonably informed promptly (but in no event later than 24 hours) after any material changes in status or material terms of any Acquisition Proposal andand shall provide to the Purchaser promptly (but in no event later than 24 hours) after receipt thereof of copies of proposed transaction agreements or proposal letters sent or provided to the Company or any of its Subsidiaries that describe any material terms or conditions of any Acquisition Proposal, if in writingand keep the Purchaser reasonably informed as to the nature of any information requested of the Company with respect thereto. Upon request of the Purchaser, a copy thereof and thereafter the Company shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), apprise the Purchaser of the status of any such Acquisition Proposal, inquiry, or request. If an Acquisition Proposal shall have been publicly announced (other than by the Purchaser, its Subsidiaries, or any of their respective Affiliates or Representatives), the Company shall publicly reaffirm the Company Board Recommendation within ten (10) Business Days after receipt of a written request by the Purchaser to provide such reaffirmation, unless an Adverse Recommendation Change is permitted by Section 4.1(b); provided, however, that in no event shall the Company be obligated to publicly reaffirm the Company Board Recommendation on more than one occasion with respect to each such publicly announced Acquisition Proposal by any Third Party or on more than one occasion with respect to each publicly announced material modification thereto.
(f) Notwithstanding anything in this Agreement to the contrary, the Board of Directors may make an Adverse Recommendation Change in response to an Acquisition Proposal (or terminate this Agreement pursuant to Section 8.1(d)(i)), only so long as (i) such Acquisition Proposal was not the result of a breach of this Section 4.1(a) and such Acquisition Proposal is not withdrawn, (ii) the Board of Directors has determined in good faith, after consultation with its financial advisor and outside legal counsel and after taking into account any revisions to the terms of this Agreement that may be offered in writing by the Purchaser in accordance with this Section 4.1(f), (A) that such Acquisition Proposal constitutes a Superior Proposal, and (B) that the failure to take make an Adverse Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under applicable Law, (iii) the Company (A) notifies the Purchaser in writing (a “Change Notice”) at least three (3) Business Days before the making of any Adverse Recommendation Change of the determination of the Board of Directors of the Company that such Acquisition Proposal constitutes a Superior Proposal and of its intention to take such action, attaching the most current version of all proposed agreements under which such Superior Proposal is proposed to be consummated and all other material terms and conditions in respect of such Acquisition Proposal and the status identity of the Third Party making such Superior Proposal, (B) during the three (3) Business Day period beginning on the date of receipt (or deemed receipt in accordance with Section 9.6) of the Change Notice by the Purchaser, is available to negotiate in good faith with the Purchaser (if requested by the Purchaser) any proposal by the Purchaser to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal (provided that any amendment, supplement or discussions or negotiations. Notwithstanding modification to any Acquisition Proposal shall require the foregoing, the Stockholders shall not be required Company to notify Parent of any discussions or negotiations deliver to the extent Purchaser a new Change Notice and a new negotiation period, except that the Company has notified Parent thereofnew negotiation period under this Section 4.1(f) with respect to any revised Acquisition Proposal shall be two (2) Business Days, instead of three (3) Business Days), and (iv) the Board of Directors (A) shall have considered in good faith any revisions to the terms of this Agreement offered in writing by the Purchaser pursuant to this Section 4.1(f), and (B) shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal remains a Superior Proposal.
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Until this Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to has been terminated in accordance with Section 88.1, each of DMGI and the Stockholders hereby Orchard agrees that it shall will not, and it shall instruct will cause its controlled Affiliates and use its reasonable best efforts to direct its Representatives and their officers, directors, agents and representatives not to, directly or indirectly:
, (1i) (A) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead proposals with respect to, any Acquisition Proposal;
(2B) engage in, continue or otherwise participate in any discussions or negotiations regardingconcerning, or (C) provide any non-public confidential or nonpublic information or data to or (D) have, or engage or participate in, any Person or Group discussions with any person relating to, any Acquisition Proposal (as defined in clause (d) below), (ii) release or permit the release of any person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which such party is a party or under which such party has any rights with respect to the sale or transfer of the voting securities or any inquirymaterial portion of the assets of such party, proposal (iii) withdraw, modify or offer qualify (or propose to withdraw, modify or qualify) in any manner adverse to the other party the recommendation by such party’s Board of Directors of this Agreement to its stockholders or take any action or make any statement in connection with such party’s meeting of stockholders inconsistent with such recommendation, including any action to approve, recommend or endorse, or to propose to approve, recommend or endorse, any Acquisition Proposal (collectively, a “Change in Recommendation”) or (iv) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Acquisition Proposal or requiring such party to abandon, terminate or fail to consummate any of the transactions contemplated hereby, including the Merger.
(b) Notwithstanding Section 6.12(a), prior to approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, each of DMGI and the Orchard (the “Acting Party”) may, and may permit its Affiliates and its and their appropriate officers, directors, agents and representatives to furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions with, any person in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Acting Party after the date of this Agreement and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, and may withdraw, modify or qualify the recommendation by such party’s Board of Directors of this Agreement to its stockholders in connection therewith, if and so long as (A) none of the Acting Party, any of its controlled Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.12, (B) the Board of Directors of the Acting Party concludes in good faith (after receiving the advice of its outside counsel and its financial advisors) that failure to take such actions would result in a violation of its fiduciary duties under applicable law, (C) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to, and participating in such negotiations or discussions with, such person, the Acting Party provides the other party with written notice of the identity of such person and of the Acting Party’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such person, (D) prior to providing any nonpublic information to such person, the Acting Party shall have entered into a confidentiality and standstill agreement with such person (a copy of which it shall have provided to the other party) on terms no less restrictive upon such person, in any respect, than the terms applicable to the other party under the Confidentiality Agreement, which confidentiality and standstill agreement shall not provide such person with any exclusive right to negotiate with the Acting Party or have the effect of preventing the Acting Party from satisfying its obligations under this Agreement, (E) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to such person, the Acting Party furnishes such information to the other party (to the extent such information has not been previously delivered or made available by the Acting Party to the other party) and (F) prior to so withdrawing, modifying or qualifying the recommendation by its Board of Directors of this Agreement, the Acting Party gives the other party five business days’ prior written notice of its intention to do so (unless at the time such notice is otherwise required to be given there are less than five business days prior to the Acting Party’s stockholders meeting, in which case the Acting Party shall provide as much notice as is reasonably practicable), and during such time, the Acting Party, if requested by the other party, shall have engaged in good faith negotiations to amend this Agreement (including by making its officers and its financial and legal advisors reasonably available to negotiate) such that the Board of Directors of the Acting Party may continue to recommend the approval of this Agreement.
(c) If DMGI effects a Change in Recommendation, the Orchard shall have the option (the “Stockholder Vote Option”), exercisable within ten business days after such Change in Recommendation, to cause DMGI’s Board of Directors to submit this Agreement to its stockholders for the purpose of adopting this Agreement and approving the Merger.
(d) Each of DMGI and the Orchard shall, and shall cause its controlled Affiliates and its and their appropriate officers, directors, agents and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than the Orchard or DMGI, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within one day) request each person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring such party or any portion thereof (including any of its Subsidiaries) to return all nonpublic information heretofore furnished to such person by or on behalf of such party and shall advise the other party of the particulars of such request. Each party will (i) promptly (within 24 hours) advise the other party following receipt of any request for information, of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal Proposal, and the substance thereof (other than to state that including the terms and conditions of, and the identity of this Section 4.1 prohibit the person making, such discussionsrequest, Acquisition Proposal or inquiry);
, (3ii) furnish promptly (within 24 hours) provide the other party with all written materials received by such party in connection with the foregoing and (iii) keep the other party apprised of any related developments, discussions and negotiations on a current basis. Each of DMGI and the Orchard shall use its reasonable best efforts to enforce any Person (other than Parent existing confidentiality or any of its Affiliates) any non-public information relating standstill agreements to the Company which it or any of its Subsidiaries is a party in accordance with the terms thereof.
(e) As used in this Agreement, “Acquisition Proposal” shall mean any offer, proposal or afford inquiry relating to, or any indication of interest in, an Alternative Transaction received by a party from any person other than the other party, in each case, whether or not in writing and whether or not delivered to any such Person access party or to the businessstockholders of such party generally. As used in this Agreement, propertiesan “Alternative Transaction” means any of (i) a transaction (or series of related transactions) pursuant to which any person (or group of persons), directly or indirectly, acquires or would acquire direct or indirect beneficial ownership of more than 15% of the outstanding shares of a party’s common stock or outstanding voting power or of any new series or new class of preferred stock that would be entitled to a class or series vote with respect to the Merger or that would be entitled to more than 15% of the fair market value of the outstanding equity interests of such party, whether from such party or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, business combination, consolidation, sale of all or substantially all of the assets, booksliquidation, records dissolution or other nonsimilar transaction involving a party or any of its “significant subsidiaries” (as defined in Rule 1-public information02 of Regulation S-X promulgated by the SEC), (iii) any transaction (or series of related transactions) pursuant to which any person (or group of persons) acquires or would acquire control of assets (including for this purpose the outstanding equity securities of Subsidiaries of such party and securities of the entity surviving any merger or business combination including any of its Subsidiaries) of such party, or to any personnel, of its Subsidiaries representing more than 15% of the Company fair market value of all the assets, net revenues or net income of such party and its Subsidiaries, in taken as a whole, immediately prior to such transaction (or series of related transactions) or (iv) any such case with the intent to induceother consolidation, business combination, recapitalization or that could reasonably be expected to result in, the making, submission similar transaction (or announcement of, an Acquisition Proposal;
(4series of related transactions) approve, endorse involving a party or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingits Subsidiaries.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
Appears in 1 contract
Acquisition Proposals. (a) From and after Subject to Section 6.8(c) through Section 6.8(h), PRE agrees that, from the date hereof of this Agreement until the earlier Effective Time or, if earlier, the date of the termination of the Merger this Agreement pursuant to in accordance with Article VIII thereof and the Company Merger Effective TimeVIII, subject to Section 8, each neither it nor any of the Stockholders hereby agrees that it shall notits Subsidiaries shall, and it shall instruct and use its reasonable best efforts to direct cause its Representatives and its Subsidiaries’ directors, officers, employees, agents, investment bankers, attorneys, accountants and other representatives (“Representatives”) not to, directly or indirectly:
: (1i) initiate, solicit, propose solicit or take any action to knowingly facilitate or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induceof, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
; (4ii) approveenter into, endorse participate or recommend engage in any proposal that constitutes negotiations concerning, or would reasonably be expected provide any non-public information or data relating to lead it or any of its Subsidiaries to any Person or afford access to the resources, properties, assets, books or records of it or any of its Subsidiaries to any Person relating to, in connection with, or in response to an Acquisition Proposal;
, or any inquiry or indication of interest that could reasonably expected to result in an Acquisition Proposal; (5iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into into, any Alternative letter of intent, agreement in principle, merger or amalgamation agreement, acquisition agreement, option agreement or other similar agreement relating to any Acquisition Proposal (each an “Acquisition Agreement”); or
(6v) authorizeterminate, resolveamend, release, modify or fail to enforce any provision (including any standstill or other provision) of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement (including an Acceptable Confidentiality Agreement) or obligations of any Person (other than in respect of Parent); or (vi) propose publicly or commit, authorize or agree or commit to do any of the foregoingforegoing relating to any Acquisition Proposal.
(b) Notwithstanding anything Subject to Section 6.8(c) through Section 6.8(h), prior to the contrary Closing, neither the PRE Board nor any committee thereof shall, directly or indirectly: (i) withhold, withdraw, modify or qualify, or publicly propose to withhold, withdraw, modify or qualify, in a manner adverse to Parent, the PRE Board Recommendation; (ii) approve, adopt, recommend or declare advisable, or publicly propose to approve, adopt, recommend or declare advisable, any Acquisition Proposal; (iii) if a tender offer or exchange offer for any issued and outstanding shares PRE is commenced prior to obtaining the Requisite PRE Vote, fail to recommend against acceptance of such tender offer or exchange offer by its respective shareholders (including, for these purposes, by taking no position or a neutral position in respect of the acceptance of such tender offer or exchange offer by its shareholders, which shall be deemed to be a failure to recommend against the acceptance of such tender offer or exchange offer) within five Business Days after commencement thereof (or in the event of a change in the terms of the tender offer or exchange offer, within five Business Days of the announcement of such changes); or (iv) fail to include the PRE Board Recommendation in the Proxy Statement (any action described in clauses (i)-(iv) above being referred to as a “Change of Recommendation”).
(c) Notwithstanding the limitations set forth in Section 4.1(a6.8(a) and Section 6.8(b), until the Stockholders earlier of receipt of the Requisite PRE Vote and their Representatives may any termination of this Agreement pursuant to Section 8.1, if after the date of this Agreement, PRE receives a written unsolicited bona fide Acquisition Proposal that the PRE Board has determined in good faith, after consultation with its outside legal counsel and financial advisors: (i) constitutes a Superior Proposal; or (ii) would reasonably be likely to result in a Superior Proposal, then PRE may: (A) furnish or disclose nonpublic information to the Person making such Acquisition Proposal if, prior to furnishing such information, PRE receives from the third party an executed Acceptable Confidentiality Agreement and (B) engage in or otherwise participate in discussions or negotiations regarding with such Person with respect to such Acquisition Proposal, in each case only if the PRE Board determines in good faith, after consultation with its outside legal counsel that failure to do so would violate the fiduciary duties of the PRE Board under applicable Law.
(d) Notwithstanding anything in this Agreement to the contrary, the PRE Board, at any time prior to the receipt of the Requisite PRE Vote, in response to the receipt of a written unsolicited bona fide written Acquisition Proposal made or received after the date of this Agreement, shall be permitted to effect a Change of Recommendation, if the PRE Board determines in good faith, after consultation with its outside legal counsel and only financial advisors, that: (i) failure to make such Change of Recommendation would violate the fiduciary duties of the PRE Board under applicable Law; and (ii) such Acquisition Proposal constitutes a Superior Proposal; provided, that the PRE Board shall not be permitted to make such a Change of Recommendation unless and until (1) at least five Business Days shall have passed following the Parent Board’s receipt of a written notice from PRE (the “Superior Proposal Notice”) that includes PRE’s reasons for the Change of Recommendation and the material terms and conditions of any Superior Proposal (including the identity of the party making such proposal and its financing sources (if applicable), the most current version of the proposed agreement relating thereto and any agreement relating to such financing) that is the basis of the proposed Change of Recommendation (it being understood and agreed that any amendment to the extent financial or other material terms (including the form or allocation of consideration) of such Superior Proposal shall require a new Superior Proposal Notice and a new five Business Day period during which PRE shall comply with the terms of this Section 6.8), (2) during such five Business Day period (x) the PRE Board shall have provided the Parent Board with a reasonable opportunity to make any adjustments to the terms and conditions of this Agreement and the Transactions so that such Acquisition Proposal ceases to be a Superior Proposal and shall negotiate with Parent in good faith with respect thereto, and (y) the Company PRE Board (acting upon the recommendation of the Special Committee) or the Special Committee has shall have determined in good faith based on at the information then available end of such notice period and, after considering the results of such negotiations and the revised proposals made by Parent, if any, and after consultation with its outside legal counsel and financial advisor and outside counsel either constitutes that the Superior Proposal, giving rise to such Superior Proposal Notice, continues to be a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and that the failure to take make such action a Change of Recommendation would reasonably be expected to be inconsistent with violate its fiduciary duties under applicable Laws, and (3) the PRE Board has not materially breached its obligations under this Section 6.8.
(e) Notwithstanding any Change of Recommendation or anything contained in this Agreement: (i) PRE shall call, give notice of, convene and hold the PRE Shareholders Meeting for the purpose of obtaining the Requisite PRE Vote, and nothing contained herein shall relieve PRE of such obligation, and such obligation shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to PRE of any Acquisition Proposal; (ii) the Proxy Statement and any and all accompanying materials may include appropriate disclosure with respect to such Change of Recommendation if and to the extent the PRE Board determines after consultation with outside legal counsel that the failure to include such disclosure would violate applicable Laws; and (iii) PRE shall not take any action knowingly to facilitate such Acquisition Proposal including without limitation in connection with any approvals, except as required by applicable Law.
(cf) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) PRE agrees that it will promptly and its Subsidiaries shall (andi) immediately cease and cause to be terminated any existing activities, in any eventsolicitations, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations negotiations, if any, with any Person or Group pursuant its Representatives (other than the parties and their respective Representatives) conducted prior to Section 4.1(b) the date of this Agreement with respect to any Acquisition Proposal, and shall providerequest that any such Person (together with its Representatives) that has executed a confidentiality agreement in connection with an Acquisition Proposal with it or any of its Subsidiaries within the 24-month period prior to the date hereof and that is in possession of confidential information heretofore furnished by or on behalf of it or its Subsidiaries, to return or destroy such information as promptly as practicable, (ii) immediately take all steps necessary (to the extent reasonably possible) to terminate any approval under any confidentiality, “standstill” or similar provision that may have been heretofore given by PRE to any Person to make an Acquisition Proposal and (iii) take the necessary steps to promptly inform its and its Subsidiaries’ Representatives of the obligations undertaken in this Section 6.8.
(g) From and after the date of this Agreement, PRE shall promptly orally notify Parent of any request for information or any inquiries, proposals or offers relating to an Acquisition Proposal indicating, in connection with such notice, (x) the identity name of the such Person or Group making such request, inquiry, proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of offer and the material terms and conditions of any proposals or offers (including the identity of the party making such proposal and its financing sources (if applicable), the most current version of the proposed agreement relating thereto and any agreement relating to such financing) and PRE shall provide Parent written notice of any such inquiry, proposal or offer within 24 hours of such event and copies of any written or electronic correspondence to or from any Person making an Acquisition Proposal and, if in writing, a copy thereof and thereafter Proposal. PRE shall keep Parent informedinformed orally, on a prompt basis (and, in any event, within forty-eight (48) hours)as soon as is reasonably practicable, of the status of any Acquisition Proposal, including with respect to the status and terms of any such Acquisition Proposal proposal or offer and the status whether any such proposal or offer has been withdrawn or rejected and PRE shall provide to Parent written notice of any such withdrawal or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent rejection and copies of any discussions written proposals or negotiations requests for information within 24 hours. PRE also agrees to provide any information to Parent (not previously provided to Parent) that it is providing to another Person pursuant to this Section 6.8 at substantially the same time it provides such information to such other Person. All information provided to Parent under this Section 6.8 shall be kept confidential by Parent in accordance with the terms of the Confidentiality Agreement.
(h) Nothing contained in this Agreement shall prevent the PRE Board from complying with its disclosure obligations to the extent PRE Shareholders contemplated by Rule 14d-9, 14e-2 or Item 1012(a) of Regulation M-A under the Company has notified Parent thereofExchange Act.
Appears in 1 contract
Acquisition Proposals. (a) From Except as expressly contemplated by this Agreement or to the extent that the Purchaser, in its sole and after the date hereof absolute discretion, has otherwise consented to in writing, until the earlier of (i) the termination completion of a Compulsory Acquisition or Subsequent Acquisition Transaction; and (ii) the Merger date, if any, on which this Agreement is terminated pursuant to Article VIII thereof and Section 6.1, the Company Merger Effective Time, subject shall not and shall cause its Representatives to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts directly or indirectly through any other person:
(i) make, initiate, solicit or knowingly encourage (including by way of furnishing or affording access to direct its Representatives not toinformation or any site visit), or take any other action that facilitates, directly or indirectly:
(1) initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected with respect to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any an Acquisition Proposal or any inquiry, proposal or offer that would reasonably could be expected to lead to an Acquisition Proposal; or
(ii) participate in any discussions or negotiations with, furnish information to, or otherwise co-operate in any way with, any person (other than the Purchaser and its subsidiaries) regarding an Acquisition Proposal or that reasonably could be expected to lead to an Acquisition Proposal, it being acknowledged and agreed that, provided the Company is then in compliance with its obligations under this Section 5.1, the Company may (a) advise a Person who has submitted a written Acquisition Proposal of the restrictions in this Agreement, and (b) advise a Person who has submitted a written Acquisition Proposal that their Acquisition Proposal does not constitute a Superior Proposal; or
(iii) remain neutral with respect to, or agree to, approve or recommend, or propose publicly to agree, approve or recommend any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of three Business Days after such Acquisition Proposal has been publicly announced shall be deemed not to constitute a violation of this Section 5.1(a)(iii)); or
(iv) make or propose publicly to make a Change of Recommendation; or
(v) accept, enter into, or propose publicly to accept or enter into, any agreement, understanding or arrangement effecting or related to any Acquisition Proposal or potential Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to state that the terms of this Section 4.1 prohibit such discussions5.1(c);); or
(3vi) furnish make any public announcement (except as required by applicable Law or the rules or policies of the TSX or NYSE MKT after prior notice to the Purchaser) or take any Person other action inconsistent with the approval or recommendation of the Exeter Board of the transactions contemplated hereby.
(b) The Company and its Representatives will and will cause its subsidiaries and their Representatives to immediately cease any solicitation, knowing encouragement, discussion or negotiation with any person (other than Parent or any of the Purchaser and its Affiliatessubsidiaries) any non-public information relating to conducted heretofore by the Company or any of its Subsidiaries Representatives or afford its subsidiaries and their Representatives with respect to any such Person Acquisition Proposal and, in connection therewith, the Company will discontinue access to the business, properties, assets, books, records or other non-public any of its confidential information, or including access to any personneldata room, of virtual or otherwise, to any person (other than access by Company advisers and the Company Purchaser and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingRepresentatives).
(bc) Notwithstanding anything to the contrary contained in Section 4.1(a5.1(a), in the event that the Company receives a written Acquisition Proposal from any person after the date hereof that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.1, and subject to the Company’s compliance with Section 5.1(d), the Stockholders Company and their its Representatives may engage in (i) contact such person solely to clarify the terms and conditions of such Acquisition Proposal, (ii) furnish information with respect to it to such person pursuant to an Acceptable Confidentiality Agreement, provided that (x) the Company provides a copy of such Acceptable Confidentiality Agreement to the Purchaser promptly upon its execution or otherwise prior to providing any such information and (y) the Company contemporaneously provides to the Purchaser any non-public information concerning the Company that is provided to such person which was not previously provided to the Purchaser or its Representatives, and (iii) participate in any discussions or negotiations regarding a bona fide written such Acquisition Proposal received after the date of this AgreementProposal; provided, if and only however, that, prior to the extent that the Company Board taking any action described in clauses (acting upon the recommendation of the Special Committeeii) or (iii) above, the Special Committee has determined Exeter Board determines in good faith based on the information then available and faith, after consultation with its financial advisor advisors and outside counsel either constitutes legal counsel, that such Acquisition Proposal is or could reasonably be expected to lead to a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its violate the fiduciary duties of such directors under applicable Law.
(cd) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) 24 hours) notify Parent the Purchaser, at first orally and thereafter in writing following writing, of any discussions Acquisition Proposal (whether or negotiations with not in writing) received by the Company, any Person inquiry received by the Company that could reasonably be expected to lead to an Acquisition Proposal, or Group pursuant any request received by the Company for non-public information relating to Section 4.1(b) and shall provide, the Company in connection with such noticean Acquisition Proposal or for access to the properties, (x) the identity books or records of the Person or Group Company by any person that informs the Company that it is considering making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is an Acquisition Proposal, including if in effect writing a copy of the date hereof) (y) Acquisition Proposal, a summary description of the material terms and conditions of such inquiry or request and the identity of the person making such Acquisition Proposal, inquiry or request, and promptly provide to the Purchaser such other information concerning such Acquisition Proposal, inquiry or request as the Purchaser may reasonably request. The Company will keep the Purchaser promptly and fully informed of the status and details (including all amendments) of any such Acquisition Proposal, inquiry or request.
(e) Except as expressly permitted by this Section 5.1, neither the Exeter Board, nor any committee thereof shall: (i) make a Change of Recommendation, (ii) accept, approve, endorse or recommend or publicly propose to accept, approve, endorse or recommend any Acquisition Proposal, (iii) permit the Company to accept or enter into, or publicly propose to enter into (or permit any such actions in the case of the Exeter Board or any committee thereof), any letter of intent, memorandum of understanding or other Contract, agreement in principle, acquisition agreement, merger agreement or similar agreement or understanding, other than an Acceptable Confidentiality Agreement (an “Acquisition Agreement”) with respect to any Acquisition Proposal or (iv) permit the Company to accept or enter into any Contract requiring the Company to abandon, terminate or fail to consummate the Contemplated Transactions or providing for the payment of any break, termination or other fees or expenses to any person proposing an Acquisition Proposal in the event that the Company completes the transactions contemplated hereby or any other transaction with the Purchaser or any of its affiliates.
(f) Notwithstanding Section 5.1(e), in the event the Company receives an Acquisition Proposal that is a Superior Proposal from any person after the date hereof, then the Exeter Board may withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Offer and/or approve or recommend such Superior Proposal and/or enter into an Acquisition Agreement with respect to such Superior Proposal but only if:
(i) the Company has given written notice to the Purchaser that it has received such Superior Proposal that complies with Section 5.1(d) hereof and that the Exeter Board has determined that (x) such Acquisition Proposal constitutes a Superior Proposal and (y) the Exeter Board intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Offer, and/or enter into an Acquisition Agreement with respect to such Superior Proposal in each case promptly following the making of such determination, together with a summary of the material terms of any proposed Acquisition Agreement or other agreement relating to such Superior Proposal (together with a copy of such agreement and any ancillary agreements) to be executed with the person making such Superior Proposal and, if in writingapplicable, a copy thereof and thereafter written notice from the Exeter Board regarding the value or range of values in financial terms that the Exeter Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered in the Superior Proposal;
(ii) a period of five full Business Days (such period being the “Superior Proposal Notice Period”) shall keep Parent informed, on a prompt basis (have elapsed from the date the Purchaser received the notice from the Company referred to in Section 5.1(f)(i) and, if applicable, the notice from the Exeter Board with respect to any non-cash consideration as contemplated in any event, within forty-eight (48) hoursSection 5.1(f)(i), together with the summary of material terms and copies of agreements referred to therein. During the Superior Proposal Notice Period, the Purchaser shall have the right, but not the obligation, to propose to amend the terms of the status Offer and terms this Agreement;
(iii) the Company did not breach any provision of any this Section 5.1 in connection with the preparation or making of such Acquisition Proposal and the status Company has complied with the other terms of this Section 5.1(f);
(iv) if the Purchaser has proposed to amend the terms of the Offer and this Agreement in accordance with Section 5.1(f)(ii), the Exeter Board shall have determined in accordance with Section 5.1(g) that such Acquisition Proposal remains a Superior Proposal compared to the Offer and this Agreement as proposed to be amended by the Purchaser;
(v) the Company concurrently terminates this Agreement pursuant to Section 6.1(d)(i); and
(vi) the Company has previously paid, or concurrently with such termination pays, to the Purchaser the Termination Fee.
(g) The Exeter Board will review in good faith any offer made by the Purchaser to amend the terms of the Offer and this Agreement in order to determine, in consultation with its financial advisors and outside legal counsel, whether the proposed amendments would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. The Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of the making of, and each of the terms of, any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders proposed amendments shall be kept strictly confidential and shall not be required disclosed to notify Parent of any discussions or negotiations to person (including without limitation, the extent person having made the Company has notified Parent thereof.Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written
Appears in 1 contract
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the The Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct cause the officers, directors, employees, agents and use representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent, representative or Affiliate (collectively as to each Party, the “Representatives”) of the Company or any of its reasonable best efforts Subsidiaries not to direct its Representatives not to, directly or indirectly:
(1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6iii) authorize, resolve, agree otherwise knowingly facilitate any effort or commit attempt to do any of the foregoingmake an Acquisition Proposal.
(b) Notwithstanding anything in Section 6.06(a) to the contrary in Section 4.1(a)contrary, prior to the time, but not after, the Stockholders and their Representatives Requisite Stockholder Approval is obtained, the Company may engage (A) provide information in or otherwise participate in discussions or negotiations regarding response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal received providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement and substantially concurrently (and in any event within 24 hours) discloses (and, if applicable, provides copies of) any such information to Purchaser to the extent not previously provided to Purchaser; (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal; or (C) after the date having complied with all requirements of this AgreementSection 6.06(c) and Section 6.06 (d), approve, recommend, or otherwise declare advisable or propose to approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that that, (x) prior to taking any action described in clause (A), (B) or (C) above, the Company Board (acting upon the recommendation determines in good faith after consultation with outside legal counsel that failure to take such action, in light of the Special CommitteeAcquisition Proposal and the terms of this Agreement, would be inconsistent with the directors’ fiduciary duties under applicable Law, (y) in each such case referred to in clause (A) or (B) above, the Special Committee Company Board has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal Proposal, and (z) in accordance with the Merger Agreement and case referred to in clause (C) above, the failure to take such action would reasonably be expected to be inconsistent Company Board determines in good faith (after consultation with its fiduciary duties under applicable Lawfinancial advisor and outside legal counsel) that such Acquisition Proposal is a Superior Proposal.
(c) From The Company Board shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Purchaser, the Company Board Recommendation with respect to the Merger; or
(ii) except as expressly permitted by, and after compliance with, Section 8.01(f) hereof, cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract (other than a confidentiality agreement referred to in Section 6.06(b) entered into in compliance with Section 6.06(b)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Stockholder Approval is obtained, the Company Board may withhold, withdraw, qualify or modify the Company Board Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal made after the date of this Agreement that was not solicited, initiated, encouraged or facilitated in breach of this Agreement, if the Company Board determines in good faith, after consultation with outside counsel, that failure to do so would be inconsistent with the directors’ fiduciary duties under applicable law (a “Change of Recommendation”); provided, however, that no Change of Recommendation may be made, and, for the avoidance of doubt, no action referred to in Section 6.06(b)(C) shall be taken, until after at least 72 hours following Purchaser’s receipt of notice from the Company advising that the Company currently intends to take such action and the basis therefor, including all necessary information under Section 6.06(f). In determining whether to make a Change of Recommendation or, for the avoidance of doubt, whether to take any action referred to in Section 6.06(b)(C), in response to a Superior Proposal or otherwise, the Company Board shall take into account any changes to the terms of this Agreement proposed by Purchaser and any other information provided by Purchaser in response to such notice. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.06, including with respect to the notice periods referred to in this Section 6.06(d) and Section 6.06(f).
(e) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted prior to the date hereof until with respect to any Acquisition Proposal. The Company agrees that it will take the earlier necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the termination obligations undertaken in this Section 6.06 and in the Confidentiality Agreement. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of the Merger Agreement pursuant acquiring it or any of its Subsidiaries to Article VIII thereof and the return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(f) The Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) 24 hours) notify Parent in writing following Purchaser if any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such information is requested from, or any such discussions or negotiations with negotiation are sought to be initiated or continued with, it or any Person or Group pursuant to Section 4.1(b) and shall provideof its Representatives indicating, in connection with such notice, (x) the identity name of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of and the material terms and conditions of any Acquisition Proposal andproposals or offers (including, if in writingapplicable, a copy thereof copies of any written requests, proposals or offers, including proposed Contracts) and thereafter shall keep Parent Purchaser informed, on a prompt basis (and, in any event, within forty-eight (48) hours)current basis, of any material changes in the status and terms of any such Acquisition Proposal proposals or offers (including any amendments thereto) and any material changes in the status of any such or discussions or negotiations. Notwithstanding , including any change in the foregoing, the Stockholders Company’s intentions as previously notified.
(g) Nothing contained in this Agreement shall not be required to notify Parent of any discussions or negotiations to the extent prevent the Company has notified Parent thereofor the Company Board from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to an Acquisition Proposal; provided that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement, and nothing in this clause (g) shall permit the Company to take any action otherwise contemplated by this Section 6.06 without compliance herewith.
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and Except as permitted by this Section 6.3, the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall will not, and it shall will cause its Subsidiaries not to, and will instruct and use its reasonable best efforts to direct its their Representatives not to, directly or indirectly:
, from the date hereof until the Acceptance Time: (1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making submission of any proposal or offer that constitutes, constitutes or would could reasonably be expected to lead to, to any Acquisition Proposal;
Proposal or engage in any negotiations with respect thereto, or (2ii) engage in, continue or otherwise participate in any discussions or negotiations regardingregarding an Acquisition Proposal with any such Person (other than Parent, Purchaser or any designees of Parent or Purchaser), or provide any non-public information or data to any Person (other than Parent, Purchaser or Group any designees of Parent or Purchaser) relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries Subsidiaries, or to afford to any such Person access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries to any such Person (other than Parent, Purchaser or any designees of Parent or Purchaser). The Company and its SubsidiariesSubsidiaries will, in and shall direct their Representatives to, immediately cease and cause to be terminated any such case solicitation, discussion or negotiation with the intent any Person with respect to induce, any Acquisition Proposal or proposal that could reasonably be expected to result in, the making, submission or announcement of, lead to an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected and, to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit the extent the Company is contractually permitted to do any so, will request the return or destruction of all confidential information provided by or on behalf of the foregoingCompany or its Subsidiaries to any such Person.
(b) Notwithstanding anything to the contrary contained in Section 4.1(a6.3(a), at any time following the Stockholders date of this Agreement and their Representatives prior to the Acceptance Time, the Company may engage in or otherwise (i) furnish information with respect to the Company and its Subsidiaries to a Person (and its Representatives) making a written Acquisition Proposal that the Company believes is bona fide and (ii) participate in discussions or negotiations with such Person regarding such Acquisition Proposal; provided, that (A) the Company will not, and will instruct its Representatives not to, disclose any material non-public information to such Person unless the Company has, or first enters into, a bona fide written Acquisition Proposal received after the date of this Agreementcustomary confidentiality agreement with such Person on terms that, if and only taken as a whole, are not materially less restrictive to the extent other party than those contained in the Confidentiality Agreement (except that such confidentiality agreement need not prohibit the making or amendment of any Acquisition Proposal), (B) the Company will, as promptly as reasonably practicable, provide to Parent any material non-public information concerning the Company or its Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent and (C) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee any committee thereof has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal.
(c) Prior to the Acceptance Time, the Company will promptly (and in any event within one (1) Business Day) notify Parent in the event that the Company receives any Acquisition Proposal or written indication by any Person that it is considering making an Acquisition Proposal or any discussions or negotiations with respect to any Acquisition Proposal are sought to be initiated. The Company will provide Parent promptly (and in accordance any event within such one (1) Business Day period) the material terms and conditions of any proposals or offers or (in lieu thereof, if applicable, copies of any written requests, proposals or offers, including proposed agreements, and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry), in each case except to the extent that doing so would violate any confidentiality agreement existing as of the date of this Agreement. The Company will keep Parent reasonably informed on a prompt basis of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations (including by providing copies of additional written materials relating thereto within one Business Day of receipt thereof).
(d) The Company Board and each committee of the Company Board shall not, subject to the terms and conditions of this Agreement:
(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Company Board Recommendation; or
(ii) except as expressly permitted by, and after compliance with, Section 8.3(b), cause or permit the Company to enter into any acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with Section 6.3(b)) (an “Alternative Acquisition Agreement) relating to any Acquisition Proposal.
(e) Notwithstanding anything to the Merger Agreement contrary set forth in this Agreement, prior to the Acceptance Time, the Company Board or any committee thereof may withhold, withdraw, qualify or modify the Company Board Recommendation (a “Change of Board Recommendation) if (i) (x) the Company Board or any committee thereof receives an Acquisition Proposal that it determines in good faith constitutes a Superior Proposal and the Company Board or any committee thereof determines in good faith that the failure to take such action effect a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties to the Company stockholders under applicable Law or (y) an Intervening Event occurs and as a result thereof the Company Board or any committee thereof determines in good faith that the failure to effect a Change of Board Recommendation would be inconsistent with its fiduciary duties to the Company stockholders under applicable Law.
; (cii) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofin writing that it intends to effect a Change of Board Recommendation, describing in reasonable detail the reasons for such Change of Board Recommendation (a “Recommendation Change Notice); (iii) if applicable, the Company has provided Parent a copy of all definitive agreements (including all financing documents) with respect to such Superior Proposal; (iv) if requested to do so by Parent, the Company shall have discussed and negotiated in good faith, and shall have made its Representatives available to discuss and negotiate in good faith, with Parent’s Representatives any bona fide proposed modifications to the terms and conditions of this Agreement so that the failure to make such Change of Board Recommendation would no longer be inconsistent with the fiduciary duties of the Company Board (and, if applicable, such Superior Proposal ceases to constitute a Superior Proposal) during the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending three Business Days later at 5:00 p.m. Eastern Time (it being understood and agreed that any bona fide amendment to any material term or condition of any Superior Proposal shall require a new Recommendation Change Notice and a new two Business Day period); and (v) no earlier than the end of the three business day period following receipt of the Recommendation Change Notice by Parent, the Company Board or any committee thereof shall have determined in good faith, after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Change of Board Recommendation would still reasonably be expected to be inconsistent with its fiduciary duties to the Company stockholders under applicable Law and, if applicable, the Company Board or any committee thereof determines in good faith, after considering the terms of any proposed amendment or modification to this Agreement, the Acquisition Proposal that is subject of the Recommendation Change Notice continues to constitute a Superior Proposal.
(f) Nothing contained in this Section 6.3 will prohibit the Company Board from taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act.
(g) For purposes of this Agreement:
Appears in 1 contract
Acquisition Proposals. From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, each Seller agrees that such Seller will not, (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timesolicit, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
(1) initiate, solicitseek, propose entertain, encourage, facilitate, support or knowingly encourage induce the making, submission or knowingly facilitate announcement by any inquiries or the making Person of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to the acquisition by any Person (other than Buyer and its Affiliates) of any of the Purchased Interests, (b) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these exclusivity provisions) or negotiations regarding, or deliver or make available to any Person any information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to acquisition by any Person (other than Parent or any of Buyer and its Affiliates) any non-public information relating to the Company or of any of its Subsidiaries or afford to any such Person access to the businessPurchased Interests, properties(c) agree to, assetsaccept, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend any proposal that constitutes transaction related to the acquisition by any Person (other than Buyer and its Affiliates) of the Purchased Interests, or would reasonably be expected to lead to, an Acquisition Proposal;
(5d) enter into any Alternative Acquisition Agreement; or
letter of intent or any other contract contemplating or otherwise relating to the acquisition by any Person (6other than Buyer and its Affiliates) authorize, resolve, agree or commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after Purchased Interests. As of the date of this Agreement, if each Seller agrees to (i) immediately cease and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected cause to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in terminated any event, within forty-eight (48) hours) notify Parent in writing following any existing discussions or negotiations with any Person (other than Buyer or Group its Affiliates) conducted prior to the date hereof with respect to the acquisition by any Person (other than Buyer and its Affiliates) of the Purchased Interests, (ii) notify each other Person with whom it was engaged in ongoing discussions or negotiation with respect to the Purchased Interests immediately prior to the date hereof that it has entered into a binding agreement relating to the sale of the Purchased Interests, and (iii) terminate any negotiations or discussions under any confidentiality, non-disclosure, document and information access and/or other agreements (other than any such agreement with Buyer and/or its Affiliates) with respect to the sale of the Purchased Interests. Notwithstanding anything to the contrary contained herein, nothing contained herein is intended to, or shall serve to, prevent (i) any Bridge Equity Provider from exercising or otherwise limit its right of first offer under Section 4.02 of the Bridge Equity Providers Agreement, or (ii) any action by Sellers that Sellers, in their reasonable judgment, determine that they are required to perform pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) their obligations under the identity of Bridge Equity Providers Agreement or the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal Syndication Agreement and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof▇▇▇▇▇▇ IPA.
Appears in 1 contract
Sources: Interest Purchase Agreement (Erp Operating LTD Partnership)
Acquisition Proposals. 5.1 Until the Expiration Time, (a) From and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it Stockholder shall not, and it shall instruct cause its Affiliates and use its reasonable best efforts to direct its and their respective Representatives not to, directly or indirectly:
, (1i) initiate, solicit, propose or take any action to knowingly assist, facilitate or encourage or knowingly facilitate any inquiries or (including by way of furnishing information) the making submission of any inquiry or proposal or offer that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal;
Proposal provided that nothing herein shall prevent such Stockholder from passively receiving and not encouraging Acquisition Proposals not solicited in violation of this Agreement, (2ii) engage in, continue enter into or otherwise knowingly participate in any substantive discussions with or negotiations regardingwith, or provide furnish any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public material nonpublic information relating to the Company or any of its Subsidiaries Subsidiaries, or afford to any such Person access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company and or any of its SubsidiariesSubsidiaries to, or otherwise knowingly cooperate with, any Third Party, in connection with any such case with Acquisition Proposal, (iii) encourage or recommend any other holder of Company Stock to not approve the intent to induce, Merger Agreement or that could reasonably be expected to result in, the making, submission transactions contemplated by the Merger Agreement or announcement of, make any public statement approving or recommending an Acquisition Proposal;
, (4) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5iv) enter into any Alternative agreement in principle, letter of intent, memorandum of understanding, acquisition agreement or other Contract providing for or relating to an Acquisition Agreement; or
Proposal or (6v) resolve, authorize, resolve, propose or agree or commit to do any of the foregoing.
foregoing and (b) Notwithstanding anything to the contrary in Section 4.1(a)each Stockholder shall, the Stockholders and shall cause its Affiliates and its and their respective Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date of this Agreementto, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Timecease any solicitations, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any other Person or Group pursuant to Section 4.1(b) and shall provide, in connection with an Acquisition Proposal (other than Strive and its Affiliates).
5.2 Until the Expiration Time, each Stockholder agrees to notify Strive in writing promptly (and in any event within 24 hours) (a) of the receipt of any Acquisition Proposal or any material amendment or modification to the material terms of any Acquisition Proposal and such noticenotice shall include, (x) to the extent then known to such Stockholder, the identity of the Person or Group making the Acquisition Proposal and the material terms and conditions thereof (along with unredacted copies of such proposal Acquisition Proposal and all proposed transaction agreements and other material documents provided in connection therewith), (unless such disclosure is prohibited pursuant b) of any request for material nonpublic information relating to the terms Company, or for access to the business, properties, assets, books or records or personnel of the Company, by any Third Party in connection with an Acquisition Proposal and (c) keep Strive informed on a reasonably current basis of any confidentiality agreement with such Person or Group that is in effect of material changes to the date hereof) (y) a summary of the status and material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereofProposal.
Appears in 1 contract
Acquisition Proposals. (a) From Subject to Section 6.5(c), the Company shall, and after the Company shall cause its subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants and other representatives and agents of the Company and its subsidiaries (collectively, and with such meaning where such term is used elsewhere in this Article VI, “representatives”) to, from the date hereof until the earlier of Effective Time or, if earlier, the termination of the Merger this Agreement pursuant to Article VIII thereof and the Company Merger Effective Timein accordance with Section 8.1, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and use its reasonable best efforts to direct its Representatives not to, directly or indirectly:
: (1i) solicit, initiate, solicit, propose or knowingly induce, facilitate or encourage (including by way of furnishing non-public information or knowingly facilitate providing access to its properties, books, records or personnel) any inquiries regarding, or the making making, submission or announcement of any proposal or offer that constitutes, or would could reasonably be expected to lead toresult in, any an Acquisition Proposal;
, (2ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide knowingly take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or would be reasonably expected to lead to, an Acquisition Proposal (other than with Parent and its representatives). The Company and its subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including any such activities, discussions or negotiations conducted by affiliates or representatives of the Company or any of its subsidiaries) with any third parties conducted heretofore with respect to consideration of any Acquisition Proposal. The Company will exercise any rights under any confidentiality or non-disclosure agreements with any such third parties to require the return or destruction of non-public information provided prior to the date of this Agreement by the Company, its subsidiaries or data their agents and representatives to any Person or Group relating tosuch third parties, except to the extent the Board determines, following the date hereof and after consultation with outside counsel, that doing so could reasonably be expected to be inconsistent with its fiduciary duties.
(b) As promptly as practicable (and in any event no later than 48 hours) after receipt of any Acquisition Proposal or any inquiry, proposal request for nonpublic information or offer any inquiry that would reasonably be expected to lead to an Acquisition Proposal (other than Proposal, the Company shall provide Parent with notice of such Acquisition Proposal, request or inquiry, including the material terms and conditions of such Acquisition Proposal, request or inquiry and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company agrees that it shall promptly provide Parent with oral and written notice setting forth all such information as is reasonably necessary to state that keep Parent currently informed in all material respects of the status and material terms of this Section 4.1 prohibit such discussions);
(3) furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
, request or inquiry (4) approve, endorse or recommend including any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
(5) enter into any Alternative Acquisition Agreement; or
(6) authorize, resolve, agree or commit to do any of the foregoingnegotiations contemplated by Section 6.5(c)).
(bc) Notwithstanding anything to the contrary contained in Section 4.1(a6.5(a), prior to the Stockholders and their Representatives may engage Company Requisite Vote, if in or otherwise participate in discussions or negotiations regarding a response to an unsolicited bona fide written Acquisition Proposal received after by a third party, the date of this Agreement, if and only to the extent that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined determines in good faith based on the information then available and (i) after consultation with its outside counsel and a financial advisor and outside counsel either of nationally recognized reputation, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance and (ii) after consultation with the Merger Agreement and outside counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such action would Acquisition Proposal could reasonably be expected to be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and law, the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (andmay, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant response to Section 4.1(b) and shall provide, in connection with such noticeAcquisition Proposal, (x) furnish information (including non-public information) with respect to the identity of Company and its subsidiaries to the Person or Group making person who has made such proposal (unless such disclosure is prohibited Acquisition Proposal, pursuant to the terms of any an executed confidentiality agreement with on terms no more favorable to such Person or Group that is person than those contained in effect of the date hereof) Confidentiality Agreement, including in respect to any standstill provisions and (y) a summary of the material terms participate in discussions and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any negotiations regarding such Acquisition Proposal and Proposal. For purposes of this Agreement, “Acquisition Proposal” means any proposal or offer from any person or “group” (within the status meaning of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.Section 13(d)(3)
Appears in 1 contract
Sources: Merger Agreement (Ecollege Com)
Acquisition Proposals. (a) From Subject to Sections 6.2(b), 6.2(c), 6.2(d) and after 6.2(e), from the date hereof until the earlier of time the Effective Time or, if earlier, the termination of the Merger this Agreement pursuant to in accordance with Article VIII thereof and VIII, the Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct not direct, authorize or permit any of its Subsidiaries or any of their directors, officers, employees, investment bankers, attorneys, accountants and use its reasonable best efforts to direct its Representatives not other advisors and representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors and representatives, collectively, the “Representatives”) to, directly or indirectly:
, (1i) initiate, solicit, propose solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any inquiry, proposal or offer that constitutes, constitutes or would reasonably be expected to lead toto an Acquisition Proposal (including by way of providing access to non-public information) (other than an Acquisition Proposal submitted by an Excluded Party), any Acquisition Proposal;
(2ii) engage in, continue in or otherwise participate in any discussions or negotiations regarding, or provide regarding any non-public information or data to any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal (other than an Acquisition Proposal submitted by an Excluded Party) or (iii) otherwise knowingly facilitate (including taking any action (other than any action taken prior to state that the terms of this Section 4.1 prohibit such discussions);
(3date hereof) furnish to exempt any Person (other than Parent and Merger Sub and their respective affiliates) from the restrictions on business combinations contained in Title 3, Subtitle 6 of the MGCL and/or the restrictions on control share acquisitions contained in Title 3, Subtitle 7 of the MGCL or any of its Affiliatesotherwise cause such restrictions not to apply) any non-public information relating effort or attempt to the Company or any of its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the making, submission or announcement of, an Acquisition Proposal;
(4) approve, endorse or recommend make any proposal or offer that constitutes or would reasonably be expected to lead to, to an Acquisition Proposal;
Proposal (5) enter into other than an Acquisition Proposal submitted by an Excluded Party). The term “Excluded Party” means any Alternative Person submitting any Acquisition Agreement; or
(6) authorize, resolve, agree or commit Proposal with respect to do any which the special committee of the foregoing.
(b) Notwithstanding anything to the contrary in Section 4.1(a), the Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written Acquisition Proposal received after the date board of this Agreement, if and only to the extent that directors of the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its financial advisor and its outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is could reasonably likely be expected to result in a Superior Proposal in accordance with the Merger Agreement and the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable LawProposal.
(c) From the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company Merger Effective Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant to Section 4.1(b) and shall provide, in connection with such notice, (x) the identity of the Person or Group making such proposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect of the date hereof) (y) a summary of the material terms and conditions of any Acquisition Proposal and, if in writing, a copy thereof and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within forty-eight (48) hours), of the status and terms of any such Acquisition Proposal and the status of any such or discussions or negotiations. Notwithstanding the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent thereof.
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