Alternative Proposals. (a) Prior to the Offer Closing Date, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation): (i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and (ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal. (b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand. (c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days). (d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation. (e) For purposes of this Agreement:
Appears in 5 contracts
Sources: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Alternative Proposals. (a) Prior Except as otherwise provided in this Section 5.4, GFI shall not, nor shall it authorize or permit any of the GFI Subsidiaries or any of its and its Subsidiaries’ respective Representatives to, directly or indirectly (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, (ii) adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement, undertaking, or understanding in connection with or relating to any Takeover Proposal (other than confidentiality agreements permitted under Section 5.4(b)(i)) or (iii) other than with BGCP and Purchasers or their respective Representatives or other than informing third parties of the existence of this Section 5.4, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with or relating to, any Takeover Proposal. GFI shall, and GFI shall cause the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith in accordance with the terms of any applicable confidentiality agreement.
(b) Notwithstanding the foregoing, prior to the Offer Closing Date, GFI and the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c5.4(d) (Change in Recommendation):
(i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent BGCP or its Representatives or is provided to Parent BGCP substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(bc) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 six (6) hours after the receipt thereofthereof (provided that, if such six-hour period would require notice to be provided between 10:00 p.m. and 8:00 a.m., Eastern Time, then no later than the later to occur of 9:00 a.m., Eastern Time, on such date or six (6) hours after receipt), GFI shall provide oral and written notice to Parent BGCP of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent BGCP that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c5.4(d) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent BGCP (or its outside legal counsel) reasonably informed of, and shall provide to Parent BGCP or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly immediately upon receipt or delivery, and in any case within 24 six (6) hours after the receipt thereofthereof (provided that, if such six-hour period would require notice to be provided between 10:00 p.m. and 8:00 a.m., Eastern Time, then no later than the later to occur of 9:00 a.m., Eastern Time, on such date or six (6) hours after receipt), provide Parent BGCP (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(cd) Neither the GFI Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the GFI Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent BGCP that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by ParentBGCP, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent BGCP does not make, within four Business Days after receipt of such notice a proposal that the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by ParentBGCP, negotiate in good faith with Parent BGCP and its Representatives (so long as Parent BGCP and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent BGCP intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent BGCP a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(de) Nothing contained in this Section 5.4 shall prohibit GFI or the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the GFI Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation.
(ef) For purposes of this Agreement:
Appears in 3 contracts
Sources: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (GFI Group Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Alternative Proposals. (a) Prior to From and after the Offer Closing Datedate hereof and until the date on which the Court shall have entered the Auction Order or issued an Order rejecting the Sale & Auction Process Motion, GFI and the Board Management Committee (as defined below), shall not, directly or indirectly, through the Receiver, the CRO, the members of Directors of GFI (upon the recommendation any of the Special Committee) may Committees, any of the Committees’ advisors, attorneys or other representatives or agents (directly or through their collectively, the “Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation”):
(i) furnish information with respect to GFI and solicit, initiate, facilitate (including by way of furnishing information), seek, assist or encourage the GFI Subsidiaries to the Person making such Takeover submission of any Alternative Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and(as defined below);
(ii) participate in any discussions or negotiations with such Person regarding, or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected furnish to lead to a Superior Proposal.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or person any inquiry information with respect to, or that could reasonably be expected to lead otherwise cooperate in any way with respect to, any Takeover Alternative Proposal, and shall direct or cause its Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to any Alternative Proposal;
(iii) withhold, withdraw, amend, change or modify, or publicly propose to withhold, withdraw, amend, change or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Receiver, the CRO, or the board of directors or managers of the PSA;
(iv) approve or recommend, or publicly propose to approve or recommend, any case Alternative Proposal; or
(v) cause or permit Stayton to enter into any letter of intent or any agreement, contract or commitment with respect to any Alternative Proposal (and “Alternative Agreement”) or seek Court approval of an Alternative Agreement or Alternative Proposal.
b) The Management Committee shall, within 24 hours after the of receipt of knowledge thereof, GFI shall provide oral and written notice to Parent advise the Purchaser in writing of (i) such Takeover any Alternative Proposal or inquiryrequest for information with respect to or in contemplation of any Alternative proposal, (ii) the material terms and conditions of such Alternative Proposal or request and the identity of the Person making any such Takeover Alternative Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, request and (ii) Parent does not make, within four Business Days after receipt of any changes in any such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Alternative Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days)request.
(dc) Nothing contained As used in this Section 5.4 5, the following initially capitalized terms shall prohibit GFI or have the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation.
(e) For purposes of this Agreementfollowing respective meanings:
Appears in 3 contracts
Sources: Agreement of Purchase and Sale (Emeritus Corp\wa\), Agreement of Purchase and Sale, Agreement of Purchase and Sale
Alternative Proposals. (a) Prior to Neither the Offer Closing Date, GFI Company nor any Affiliate shall (and the Company shall use its reasonable best efforts to cause the officers, directors, employees, representatives and agents of the Company, and each of its Affiliates, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, solicit, participate in, encourage, or initiate discussions or negotiations with, or provide any information to, any Person (other than Purchaser, any of its Affiliates or representatives) concerning or which would reasonably facilitate or be expected to lead to any Takeover Proposal, except that nothing contained in this Section 4.2 or any other provision hereof shall prohibit the Company or the Company's Board of Directors of GFI (upon from making such disclosure to the recommendation Company's stockholders as, in the good faith judgment of the Special Committee) Company's Board of Directors, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may (directly not, approve or through their Representatives)recommend, in response or propose to a bona fide written approve or recommend, any Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation):
(i) furnish information or enter into any letter of interest, agreement or other arrangement with respect to GFI and any Takeover Proposal. Upon execution of this Agreement, the GFI Subsidiaries Company will immediately cease any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the Closing, the Company may furnish information concerning its business, properties or assets to any Person making such Takeover Proposal or group and its Representatives pursuant to may negotiate and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or and negotiations with such Person or its Representatives regarding such group concerning a Takeover Proposal; provided, in each case, that Proposal if: the Company's Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (faith, after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal action is or could reasonably be expected necessary for it to lead to a Superior Proposal.
(b) As comply with its fiduciary duty under Applicable Law. The Company will promptly as reasonably practicable after notify Purchaser of the receipt, directly or indirectly, by GFI existence of any Takeover Proposal proposal, discussion, negotiation or any inquiry with respect to, or that could reasonably be expected to lead to, received by the Company regarding any Takeover Proposal, and the Company will promptly communicate to Purchaser the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will promptly provide to Purchaser copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) regarding any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) and the identity of the Person party making any such Takeover Proposal proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Purchaser any non-public information concerning the Company provided to any other Person which was not previously provided to Purchaser. The Company will keep Purchaser informed of the status and (iii) the material terms and conditions details of any such Takeover Proposal or inquiry (including a copy and of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such any Takeover Proposal and will promptly (Bbut in no case later than 24 hours) GFI shall, promptly upon receipt or delivery, and in notify Purchaser of any case within 24 hours after determination by the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Company's Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect considering accepting a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation.
(e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Path 1 Network Technologies Inc), Purchase and Sale Agreement (Path 1 Network Technologies Inc), Purchase and Sale Agreement (Path 1 Network Technologies Inc)
Alternative Proposals. (a) Prior to the Offer Closing DateThe Stockholders shall not, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (they shall cause their Representatives not to, directly or through their Representatives)indirectly initiate, solicit, or knowingly encourage any inquiries or the making or implementation of any Alternative Proposal or participate in any discussions or negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal. Notwithstanding the foregoing, in response to a bona fide written Takeover connection with any Alternative Proposal, subject to compliance the Stockholders may provide information and engage in discussions with Section 5.4(c) (Change in Recommendation):
(i) furnish information with respect to GFI and the GFI Subsidiaries to the Person making such Takeover the Alternative Proposal to the same extent as the Company is permitted to engage in discussions and its Representatives provide information pursuant to and in accordance with a customary confidentiality agreementSection 5.1(a) of the Merger Agreement; provided, further, that a copy of all such any information provided by the Stockholders with respect to such Person has previously been Acquisition Proposal is simultaneously provided to Parent if it has not previously been furnished or its Representatives or is provided made available to Parent substantially concurrently with Parent, but the time it is provided Stockholders shall not be subject to such Person; and
the requirements of clauses (iiw), (x), and (y) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation Section 5.1(a) of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalMerger Agreement.
(b) As The Stockholders shall promptly as reasonably practicable after the receipt, directly or indirectly, by GFI advise Parent of any Takeover Proposal request for information or the submission or receipt of any Alternative Proposal, or any inquiry with respect to, to or that which could reasonably be expected lead to lead to, any Takeover Alternative Proposal, the material terms and in any case within 24 hours after the receipt thereofconditions of such request, GFI shall provide oral and written notice to Parent of (i) such Takeover Alternative Proposal or inquiry, (ii) and the identity of the Person making any such Takeover request, Alternative Proposal or inquiry and its response or responses thereto. The Stockholders shall keep Parent fully informed on a prompt basis of the status and details (iiiincluding amendments or proposed amendments) the material terms and conditions of any such Takeover request, Alternative Proposal or inquiry (including a copy of any inquiry, to the extent such written Takeover Proposal and any amendments or modifications thereto)Stockholders have knowledge thereof. Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and The Stockholders shall promptly provide to Parent copies of all written correspondence or Purchaser upon request, the status of such Takeover Proposal and any material developments related theretoother written material, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shallin electronic form, promptly upon receipt or delivery, and in any case within 24 hours after between the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (Stockholders and any comments thereon) of agreements (including schedules Person making any such request, Alternative Proposal or inquiry. The Stockholders will immediately cease and exhibits thereto) relating cause to such Takeover Proposal exchanged between GFI be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other handforegoing.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation The Stockholders agree that they will promptly inform their and their Affiliates' Representatives of the Special Committee) may, obligations undertaken in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days)this Article 3.
(d) Nothing contained Notwithstanding the foregoing, each individual who is both (i) a Representative of any Stockholder and (ii) a Representative of the Company shall be entitled to take any action with respect to any Acquisition Proposal solely in its capacity as a Representative of the Company that it would otherwise be permitted to take in the absence of this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation3.3.
(e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Voting Agreement (DRS Technologies Inc), Voting Agreement (Integrated Defense Technologies Inc), Voting Agreement (Integrated Defense Technologies Inc)
Alternative Proposals. 7.1 Reuters undertakes to Thomson that it shall not, and shall procure that the members of the Reuters Group and its and their respective directors and professional advisers shall not, directly or indirectly, without the written consent of Thomson, solicit an offer or approach from any person (who is not acting in concert with Thomson) wishing to undertake an Alternative Proposal.
7.2 As an inducement to both Thomson and Reuters to achieve an agreement such that they can announce a firm intention to implement the Transaction:
(a) Prior Reuters undertakes to Thomson that it shall pay to Thomson the Offer Closing Date, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation):Standard Break Fee if: either:
(i) furnish information with respect the Reuters Board fails to GFI make a unanimous and unqualified recommendation in the GFI Subsidiaries Reuters Circular to the Person making such Takeover Proposal and its Representatives pursuant Reuters Shareholders to and vote in accordance with a customary confidentiality agreement; providedfavour of the Reuters Resolutions at the Reuters EGM, furtheror withdraws, qualifies or adversely modifies that a copy of all such information provided recommendation, or agrees or resolves prior to such Person has previously been provided the date on which the obligations in this agreement lapse (or, as applicable, the Transaction fails to Parent or its Representatives or is provided become effective) to Parent substantially concurrently with the time it is provided to such Personrecommend an Alternative Proposal; and
(ii) participate in discussions prior to the date on which the Transaction lapses (or, as applicable, fails to become effective), any Alternative Proposal (or negotiations with such Person an amended, varied or its Representatives regarding such Takeover revised version of any Alternative Proposal; provided, in each case, that ) is announced and subsequently (whether or not prior to the Board of Directors of GFI date on which the Transaction lapses (upon the recommendation of the Special Committeeor as applicable fails to become effective) determines in good faith (after consultation with its outside legal counsel and its independent financial advisoror is withdrawn) that such Takeover Alternative Proposal or any other Alternative Proposal announced prior to that date becomes or is declared unconditional in all respects or is otherwise completed; or:
(iii) Thomson terminates this agreement pursuant to clause 16.2, and within 12 months thereafter, any Alternative Proposal is announced and subsequently that Alternative Proposal (or could reasonably be expected any other Alternative Proposal announced prior to lead to a Superior Proposalthe date the first Alternative Proposal lapses or is withdrawn) becomes or is declared unconditional in all respects or is otherwise completed.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected Thomson undertakes to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent Reuters that it shall pay to Reuters the Standard Break Fee if the Thomson Resolution is prepared to effect not approved at a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (duly convened shareholder meeting on or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days)Long-Stop Date.
7.3 The relevant party shall pay the Standard Break Fee by not later than five business days after the date on which the Standard Break Fee becomes payable pursuant to clause 7.2 above. Payment shall be made in immediately available funds (dwithout any deduction or withholding and without regard to any lien, right of set-off, counterclaim or otherwise save in each case as required by law) Nothing contained to such bank account as may be notified to the relevant party by the other party for such purposes.
7.4 Reuters warrants that it has not agreed to pay any form of break fee, inducement fee or similar fee in relation to any Alternative Proposal.
7.5 Reuters shall not be required to pay any amount pursuant to this Section 5.4 shall prohibit GFI or agreement to the Board of Directors of GFI (upon extent that the recommendation Panel determines that any such payment would not be permitted by Rule 21.2 of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in RecommendationCode.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Implementation Agreement (Thomson Corp /Can/), Implementation Agreement (Reuters Group PLC /Adr/)
Alternative Proposals. (a) Prior Notwithstanding anything herein to the Offer Closing Datecontrary, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation):
if (i) furnish information with respect to GFI and the GFI Subsidiaries to Closing Date (as defined in the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and
(iiImplementation Agreement) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiryhave occurred, (ii) the identity of the Person making any such Takeover Proposal or inquiry and Investment Agreement shall have been terminated, (iii) DISH shall have paid the material terms entire Purchase Price required under the Implementation Agreement, and conditions (iv) DISH is not breach of its obligations under the Implementation Agreement with respect to the Sprint Indemnification and the payment of ICO’s fees and expenses, to the extent required by Section 5.3 of the Implementation Agreement, ICO shall:
(i) take all reasonable actions necessary or reasonably requested by DISH in connection with any alternative chapter 11 plan of reorganization, proposal or offer of dissolution, winding up, liquidation, reorganization, merger, consolidation, business combination, joint venture, partnership, sale of assets (including one or more sales under Section 363 of the Bankruptcy Code), restructuring or purchase of equity securities of the Company (“Alternative Proposal”), any related disclosure statement, to the extent applicable (the “Alternative Disclosure Statement”), and the restructuring transactions contemplated thereby (“Alternative Restructuring Transactions”), including, to the extent requested by DISH, supporting and facilitating the solicitation, confirmation and consummation of any such Takeover Alternative Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that DISH advises ICO in writing that it is prepared to effect supports (a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation“Supported Proposal”), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof material terms to such Supported Proposal shall not be materially different and adverse to ICO as compared to the Term Sheet and Implementation Agreement (including the Special Committeeagreements contemplated thereby) shall, except taken as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation.whole;
(eii) For purposes to the extent that ICO is entitled to vote to accept or reject an Alternative Proposal, subject, to the extent applicable, to the receipt by ICO of this Agreement:the Alternative Disclosure Statement, as approved by the Bankruptcy Court, (A) timely vote (when solicited in accordance with the provisions of the Bankruptcy Code and the order of the Bankruptcy Court approving the Alternative Disclosure Statement, as applicable) or cause to be voted any claim or interest it may hold to accept any Supported Proposal by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Supported Proposal on a timely basis following commencement of the solicitation of acceptances of the Supported Proposal in accordance with sections 1125 and 1126 of the Bankruptcy Code and (B) not change or withdraw such vote (or cause or direct such vote to be changed or withdrawn) unless directed to do so by DISH;
(iii) timely vote or cause to be voted any claim or interest it may hold against and not consent to, or otherwise directly or indirectly support, solicit, assist, encourage or participate in the formulation, pursuit or support of, any Alternative Proposal other than a Supported Proposal; and
(iv) not directly or indirectly seek, solicit, vote any claim or interest it may hold for, support or encourage the filing of any Alternative Proposal, or take any other action that is inconsistent with, or that would delay the solicitation, confirmation or consummation of, a Supported Proposal or the Alternative Restructuring Transactions relating to a Supported Proposal.
Appears in 1 contract
Sources: Restructuring Support Agreement (ICO Global Communications (Holdings) LTD)
Alternative Proposals. Before the Effective Time, HBC agrees
(a) Prior to the Offer Closing Datethat neither it nor any HBC Subsidiary will, GFI nor will it or any HBC Subsidiary, permit its respective officers, directors, employees, agents and the Board of Directors of GFI representatives (upon the recommendation of the Special Committeeincluding, without limitation, any investment banker, attorney or accountant retained by it or any HBC Subsidiary, collectively its "Representatives") may (to, initiate, solicit or encourage, directly or through their Representatives)indirectly, in response any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(cits stockholders) (Change in Recommendation):
(i) furnish information with respect to GFI a merger, acquisition, consolidation or similar transaction involving, or relating to the purchase of
(1) any assets of HBC or of any HBC Subsidiary, that produce 20% or more of the consolidated net revenues or net income of HBC and the GFI HBC Subsidiaries or that constitute 20% or more of the consolidated assets of HBC and the HBC Subsidiaries;
(2) shares of HBC capital stock (provided that the restriction contained in this Section 4.1(a)(2) shall not prohibit the Representatives of HBC and the HBC Subsidiaries from providing investor relations services or other similar activities consistent with past practice); or
(3) the capital stock of one or more Subsidiaries of HBC, if such subsidiaries produce 20% or more of the consolidated net revenues or net income of HBC and the HBC Subsidiaries or own assets that constitute 20% or more of the consolidated assets of HBC and the HBC Subsidiaries, (any such proposal or offer being referred to in this Agreement as an "Alternative Proposal") and that neither it nor any HBC Subsidiary will, nor will it or any HBC Subsidiary, permit its respective Representatives to engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal (excluding the Person making Merger), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal (excluding the Merger); and
(b) that it will notify Univision promptly if any such Takeover inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided that nothing contained in this Section 4.1 will prohibit the board of directors of HBC (or HBC's Representatives in the case of clause (2)(i) below) from:
(1) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; provided, however, that the board of directors of HBC shall not withdraw or modify its recommendation as to this Agreement except in accordance with Section 4.3 hereof and provided further that neither HBC nor its board of directors shall approve or recommend an Alternative Proposal and its Representatives except pursuant to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such PersonSection 6.3(a) hereof; and
(ii2) participate at any time before the adoption of this Agreement by the stockholders of HBC (the "HBC Applicable Period")
(i) engaging in discussions or negotiations with such Person a third party who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with HBC or its Representatives regarding after the date of this Agreement) seeks to initiate such Takeover discussions or negotiations, and furnishing such third party information concerning HBC and its business, properties and assets if, and only to the extent that,
(A) HBC's board of directors determines in good faith, following consultation with and after having considered the advice of a nationally recognized firm of outside legal counsel and its financial advisors that such action could reasonably be expected to result in a Superior Proposal; providedand
(B) before furnishing such information to or entering into discussions or negotiations with such person or entity, HBC (y) provides prompt, written notice to Univision to the effect that it is intending to furnish information to or enter into discussions or negotiations with such person or entity and identify such person or entity and the proposed material terms and conditions, and (z) receives from such person or entity an executed confidentiality agreement in each casereasonably customary form on terms not materially more favorable to such person or entity than the terms contained in the confidentiality agreement between HBC and Univision dated as of May 24, 2002 (the "Confidentiality Agreement") (except that such confidentiality agreement need not require approval or request of the HBC board of directors before the making of an offer or proposal to such board of directors); and/or
(ii) the board of directors of HBC may terminate this Agreement pursuant to Section 6.3(a), at any time after the fifth business day following Univision's receipt of written notice from HBC that the board of directors of HBC has (x) received a Superior Proposal and (y) elected to terminate this Agreement pursuant to Section 6.3(a) (which notice must specify the material terms and conditions of such Superior Proposal and the person making the Superior Proposal); provided that (1) the conditions set forth in clauses (i)(A) and (i)(B) above have been satisfied, and (2) before or contemporaneously with such termination HBC pays the amount owed pursuant to Section 6.5(a); and provided further that after Univision's receipt of an initial notice of a Superior Proposal pursuant to this Section 4.1(b)(2)(ii), HBC shall be obligated to notify Univision of any material change in the terms of such Superior Proposal and may terminate this Agreement thereafter in accordance with the terms of this Section 4.1(b)(2)(ii), except that the five business days referred to in the second line shall be reduced to three business days for any such change.
(c) HBC must immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons or entities previously conducted by HBC or its Representatives with respect to the foregoing. For purposes of this Agreement, "Superior Proposal" means an Alternative Proposal, made by a third party, that the Board HBC board of Directors of GFI (upon the recommendation of the Special Committee) directors, acting consistent with its fiduciary duties, determines in good faith (after consultation with its outside legal counsel attorneys and its independent financial advisor) that such Takeover (x) is reasonably capable of being consummated, taking into account all relevant legal, financial, regulatory and other aspects of the Alternative Proposal is or could and the source of its financing, on the terms proposed, and (y) after taking into account the strategic benefits anticipated to be derived from the Merger and the long-term prospects of HBC and Univision as a combined company, if consummated, would reasonably be expected to lead to result in a Superior Proposal.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties transaction more favorable to the stockholders of GFI under applicable Law; providedHBC from a financial point of view, further, that than the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days)Transactions.
(d) Nothing HBC understands and agrees that any violation of the restrictions contained in this Section 5.4 4.1 by any of its Representatives shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely deemed to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted a breach hereof by Section 5.4(c) (Change in Recommendation), effect a Change in RecommendationHBC.
(e) For purposes of this Agreement:
Appears in 1 contract
Alternative Proposals. From the Effective Date until the Closing of the Transaction contemplated by, or termination of, this Agreement, and except for the Excluded Assets used solely in the conduct of the Excluded Businesses, Sellers agree (a) Prior that none of them shall, and they shall direct and use their reasonable best efforts to cause the Offer Closing Dateofficers, GFI directors, employees, agents and the Board representatives of Directors of GFI Sellers (upon the recommendation of the Special Committeeincluding, without limitation, any investment banker, attorney or accountant retained by any Seller) may (not to initiate, solicit or encourage, directly or through their Representatives)indirectly, in response any inquiries or the making or implementation of any proposals or offer (including, without limitation, any proposal or offer to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(cits board of directors) (Change in Recommendation):
(i) furnish information with respect to GFI a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or equity or membership interests of, Sellers, the Subsidiary or the Joint Venture (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person to implement an Alternative Proposal; and (b) that Sellers will promptly cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any of the GFI Subsidiaries foregoing, and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section; provided that nothing contained in this Section shall prohibit the board of directors of any Seller from furnishing information to or entering into discussions or negotiations with any Person that makes an unsolicited bona fide proposal to acquire Sellers, the Subsidiary or the Joint Venture pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactions, if, and only to the Person making extent that, (A) the relevant board of directors determines in good faith that such Takeover Proposal and action is required for the board to comply with its Representatives pursuant fiduciary duties imposed by law, (B) prior to and in accordance with a customary confidentiality agreement; provided, further, that a copy of all furnishing such information provided to such Person has previously been provided to Parent to, or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and
(ii) participate in entering into discussions or negotiations with such Person, Sellers provide written notice to Purchasers to the effect that it is furnishing information to, or entering into discussions or negotiations with such Person, and (C) subject to any confidentiality agreement with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines which Sellers determine in good faith is required to be executed in order for its board to comply with fiduciary duties imposed by law), Sellers keep Purchasers informed of the status (after consultation with its outside legal counsel and its independent financial advisornot the terms) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal discussions or any inquiry with respect to, or that could reasonably be expected negotiations. Nothing in this Section shall (x) permit Sellers to lead to, any Takeover Proposal, and terminate this Agreement (except as specifically provided in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in RecommendationArticle 16), (Ay) GFI permit Sellers to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement Sellers shall not enter into any agreement with any Person that provides for or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereofway facilitates an Alternative Proposal (other than a confidentiality agreement in customary form), provide Parent or (or its outside legal counselz) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and affect any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated obligation under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendation.
(e) For purposes of this Agreement:.
Appears in 1 contract
Alternative Proposals. 7.1 Reuters undertakes to Thomson that it shall not, and shall procure that the members of the Reuters Group and its and their respective directors and professional advisers shall not, directly or indirectly, without the written consent of Thomson, solicit an offer or approach from any person (who is not acting in concert with Thomson) wishing to undertake an Alternative Proposal.
7.2 As an inducement to both Thomson and Reuters to achieve an agreement such that they can announce a firm intention to implement the Transaction:
(a) Prior Reuters undertakes to Thomson that it shall pay to Thomson the Offer Closing Date, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation):Standard Break Fee if: either:
(i) furnish information with respect the Reuters Board fails to GFI make a unanimous and unqualified recommendation in the GFI Subsidiaries Reuters Circular to the Person making such Takeover Proposal and its Representatives pursuant Reuters Shareholders to and vote in accordance with a customary confidentiality agreement; providedfavour of the Reuters Resolutions at the Reuters EGM, furtheror withdraws, qualifies or adversely modifies that a copy of all such information provided recommendation, or agrees or resolves prior to such Person has previously been provided the date on which the obligations in this agreement lapse (or, as applicable, the Transaction fails to Parent or its Representatives or is provided become effective) to Parent substantially concurrently with the time it is provided to such Personrecommend an Alternative Proposal; and
(ii) participate in discussions prior to the date on which the Transaction lapses (or, as applicable, fails to become effective), any Alternative Proposal (or negotiations with such Person an amended, varied or its Representatives regarding such Takeover revised version of any Alternative Proposal; provided, in each case, that ) is announced and subsequently (whether or not prior to the Board of Directors of GFI date on which the Transaction lapses (upon the recommendation of the Special Committeeor as applicable fails to become effective) determines in good faith (after consultation with its outside legal counsel and its independent financial advisoror is withdrawn) that such Takeover Alternative Proposal or any other Alternative Proposal announced prior to that date becomes or is declared unconditional in all respects or is otherwise completed; 16 or:
(iii) Thomson terminates this agreement pursuant to clause 16.2, and within 12 months thereafter, any Alternative Proposal is announced and subsequently that Alternative Proposal (or could reasonably be expected any other Alternative Proposal announced prior to lead to a Superior Proposalthe date the first Alternative Proposal lapses or is withdrawn) becomes or is declared unconditional in all respects or is otherwise completed.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected Thomson undertakes to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent Reuters that it shall pay to Reuters the Standard Break Fee if the Thomson Resolution is prepared to effect not approved at a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendation), (A) GFI (duly convened shareholder meeting on or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days)Long-Stop Date.
7.3 The relevant party shall pay the Standard Break Fee by not later than five business days after the date on which the Standard Break Fee becomes payable pursuant to clause 7.2 above. Payment shall be made in immediately available funds (dwithout any deduction or withholding and without regard to any lien, right of set-off, counterclaim or otherwise save in each case as required by law) Nothing contained to such bank account as may be notified to the relevant party by the other party for such purposes.
7.4 Reuters warrants that it has not agreed to pay any form of break fee, inducement fee or similar fee in relation to any Alternative Proposal.
7.5 Reuters shall not be required to pay any amount pursuant to this Section 5.4 shall prohibit GFI or agreement to the Board of Directors of GFI (upon extent that the recommendation Panel determines that any such payment would not be permitted by Rule 21.2 of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in RecommendationCode.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Implementation Agreement
Alternative Proposals. (a) Prior to The Company may, and may authorize or permit any Company Subsidiary to, authorize or permit any officer, director or employee of, or authorize any investment banker, attorney or other advisor, agent or representative (collectively, “Representatives”) of, the Offer Closing DateCompany or any Company Subsidiary to, GFI and the Board of Directors of GFI (upon the recommendation of the Special Committee) may (directly or through their Representatives), in response to a bona fide written Takeover Proposal, subject to compliance with Section 5.4(c) (Change in Recommendation):
(i) directly or indirectly solicit or initiate any Alternative Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to GFI and knowingly facilitate any inquiries or the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; providedof any proposal that constitutes, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could may reasonably be expected to lead to, any Alternative Proposal. The Company must reasonably promptly provide to Investor any material non-public information concerning the Company or any Company Subsidiary that is provided to such person or its Representatives which was not previously provided to Investor. In no event shall any refinancing or repayment of, or attempt to refinance or repay, the Replacement DIP Facility in cash and in full or the Prepetition Credit Agreement be deemed a breach of this Section 4.02 or other provision of this Agreement or the Replacement DIP Facility.
(b) Prior to the termination of this Agreement in accordance with the terms hereof, none of the Company, any Company Subsidiary, the Company Board nor any committee thereof may (i) approve or enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Alternative Proposal or (ii) approve, file or support any plan of reorganization or liquidation, other than the Plan, provided, however, that if the Company, any Company Subsidiary, the Company Board or any committee thereof have validly and concurrently terminated this Agreement pursuant to Section 6.01(a)(iv) having complied in full with the procedural requirements thereof, the Company may approve and enter into an agreement relating to a Superior Proposal.
(bc) As The Company promptly as reasonably practicable after becoming aware of the receiptreceipt or delivery thereof, directly or indirectlyand in any case within 24 hours thereafter, by GFI will advise Investor in writing of any Takeover Alternative Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Alternative Proposal, the identity of the person making such Alternative Proposal or inquiry and a description in reasonable detail of the material terms of any such Alternative Proposal. The Company will (i) keep Investor reasonably informed of the status (including any change to the terms thereof) of any such Alternative Proposal or inquiry and (ii) provide to Investor, as soon as practicable, and in any case within 48 hours, after receipt or delivery thereof copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Proposal or sent or provided by the Company to any third party in connection with any Alternative Proposal (unless such correspondence or written material has previously been provided to Investor).
(d) The Company promptly, and in any case within 24 hours after a determination by the receipt thereofCompany Board that any Alternative Proposal is a Superior Proposal and its intention to approve such Superior Proposal, GFI shall provide oral and written notice to Parent of (i) notify Investor in writing of such Takeover Proposal or inquirydetermination, (ii) during the identity five (5) business day period following such notification described in clause (i), provide Investor a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement as would permit the Person making any Company to accept Investor’s proposal notwithstanding such Takeover Alternative Proposal or inquiry and (iii) during the material terms and conditions of any five (5) business day period following such Takeover Proposal or inquiry notification described in clause (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to Parent that it is prepared to effect a Change in Recommendation pursuant to Section 5.4(c) (Change in Recommendationi), (A) GFI (or its outside legal counsel) shall, in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines consider in good faith (after consultation any changes to this Agreement proposed by Investor with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties respect to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by Parent intended to cause such Takeover Proposal to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, however, that neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in RecommendationTransaction.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Investment Agreement
Alternative Proposals. (a) Prior to From the Offer Closing Date, GFI and date of this Agreement until the Board of Directors of GFI (upon the recommendation earlier of the Special Committee) may (directly Closing Date or through their Representatives)the termination of this Agreement in accordance with Article 8, in response except as otherwise permitted hereby, each Exchange Party agrees that it will not, nor shall it authorize or permit any of its officers and directors and it will use its reasonable best efforts to a bona fide written Takeover Proposalcause its agents, subject to compliance with Section 5.4(c) (Change in Recommendation):
affiliates, employees and advisors not to, (i) furnish information with respect solicit, initiate or knowingly encourage (including, but not limited to, by way of furnishing nonpublic information) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to GFI and the GFI Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement; providedstockholders) that constitutes, further, that a copy of all such information provided to such Person has previously been provided to Parent or its Representatives or is provided to Parent substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal.
(b) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to Parent of Competing Transaction (i) such Takeover Proposal or inquiryas defined below), (ii) the identity enter into or maintain or continue discussions or negotiations with any Person in furtherance of the Person making any such Takeover Proposal inquiries or inquiry and to obtain a Competing Transaction, (iii) agree to any Competing Transaction or (iv) endorse any Competing Transaction; provided, however, that notwithstanding anything to the material terms and conditions contrary contained herein, prior to the date of the Requisite Stockholder Approval, nothing in this Section 6.4 shall in any such Takeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon respect prohibit the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn Schick Board or the Board officers, directors, agents, affiliates, em▇▇▇▇▇▇s or advisors of Directors of GFI (upon the recommendation of the Special Committee) has provided Schick or its Subsidiaries from furnishing or disclosing infor▇▇▇▇▇▇ to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written notice proposal to Parent that it is prepared to effect a Change in Recommendation acquire Schick pursuant to Section 5.4(c) a Competing Transaction (Change in Recommendationa "Competing Transact▇▇▇ ▇▇oposal"), if the Schick Board acting in good faith determines (Ai) GFI (after consultation ▇▇▇▇ its financial advisor that such Competing Transaction Proposal constitutes or its outside legal counsel) shall, is reasonably likely to result in person or by telephone, keep Parent (or its outside legal counsel) reasonably informed of, and shall provide to Parent or Purchaser upon request, the status of such Takeover Proposal and any material developments related thereto, including material amendments or proposed amendments as to price and other material terms of such Takeover Proposal and (B) GFI shall, promptly upon receipt or delivery, and in any case within 24 hours after the receipt thereof, provide Parent (or its outside legal counsel) with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, on the one hand, and the person making such Takeover Proposal or any of its Representatives, on the other hand.
(c) Neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time prior to Expiration Date, the Board of Directors of GFI (upon the recommendation of the Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) that the failure to do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Board of Directors of GFI (upon the recommendation of the Special Committee) shall have first provided prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by Parent, it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (ii) Parent does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by Parent, negotiate in good faith with Parent and its Representatives (so long as Parent and its Representatives are negotiating in good faith) regarding taking into account any revisions to the terms of the Exchange Transactions or this Agreement proposed by Parent intended Luxco after being notified pursuant to cause such Takeover Proposal Section 6.4(c), that doing so is necessary for the Schick Board to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to Parent a new notice and a new negotiation period of two Business Days (instead of four Business Days).
(d) Nothing contained in this Section 5.4 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal, providing any information to stockholders of GFI required by Section 220 of the DGCL or making any disclosure to the stockholders of GFI if the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent comply with its fiduciary duties to the stockholders of GFI Schick Sto▇▇▇▇▇▇ers under applicable Law; providedlaw. A "Superior Proposal" ▇▇▇▇▇ mean any bona fide written Competing Transaction Proposal for or in respect of the acquisition of at least a majority of the outstanding shares of Common Stock or all or substantially all of Schick's and its Subsidiaries' assets (i) on terms that the Schick ▇▇▇▇▇ determines in its good faith judgment (after (w) con▇▇▇▇▇▇ion with, howeverand taking into account the advice of, a financial advisor of nationally recognized reputation and outside legal counsel, (x) taking into account all the terms and conditions of such Competing Transaction Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation and (y) taking into account any revisions to the terms of the Exchange Transactions or this Agreement proposed by Luxco after being notified pursuant to Section 6.4(c)) are more favorable to Schick and its stockholders than the Exchange Transactions and the ▇▇▇▇▇ transactions contemplated hereby and (ii) that neither constitutes a transaction that is reasonably likely to be consummated on the Board terms so proposed, taking into account all legal, financial, regulatory and other aspects of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 5.4(c) (Change in Recommendation), effect a Change in Recommendationsuch proposal.
(e) For purposes of this Agreement:
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