Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such date, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor shall not, shall cause each of their respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not to, (i) initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. (b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a). (c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion. (d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties. (e) For purposes of this Letter Agreement:
Appears in 2 contracts
Sources: Oncor Letter Agreement (Oncor Electric Delivery Co LLC), Oncor Letter Agreement (Sempra Energy)
Alternative Proposals. (a) Notwithstanding anything Subject to the contrary herein, except as specifically permitted by provisions of this Section 4(c) with respect to a Permitted Alternative Proposal4.16, during the period commencing on the date hereof and continuing until the Bankruptcy Court enters an order approving earlier to occur of the Merger Agreement (such dateEffective Time and the Termination Date, the “Approval Date”) Company and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor its Subsidiary shall not, and shall use its and their reasonable best efforts to cause each of its and their respective Subsidiaries Representatives not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents directly or representatives of any Oncor Entity (collectively, “Representatives”) not toindirectly, (i) initiate, solicit, propose, initiate or knowingly encourage any inquiry with respect to, or knowingly inducethe making, the submission or announcement of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order (ii) furnish to satisfy its fiduciary obligations and its obligations pursuant any person (other than Parent or Merger Sub or their respective designees) any non-public information relating to the LLC Agreements and Company and/or its Subsidiary, or afford to any person access to the Investor Rights Agreement and maybusiness, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiary (other than Parent or Merger Sub or their respective designees), in response any such case relating to communications from an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (without iii) engage in, continue or otherwise limiting participate in any discussions or negotiations regarding any Alternative Proposal with any person, except to notify such person as to the existence of the provisions of this Section 44.16, (iv) approve, endorse or recommend an Alternative Proposal, (v) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of its direct equityholders any such standstill or confidentiality agreement that restricts the ability of a person to communicate an Alternative Proposal to the Special Committee or the Board of Directors of the Company), or anti-takeover laws, (vi) otherwise knowingly facilitate any third party who makes effort or seeks attempt by any person to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iiivii) enter into any written letter of intent, intent or agreement in principle or other any agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of providing for any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including other than any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(aAcceptable Confidentiality Agreement); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained set forth in this Section 4(a)4.16 or elsewhere in this Agreement, any at all times during the period commencing on the date of Oncor Holdings execution of this Agreement and Oncor and their Subsidiaries may, but only upon continuing until the request receipt of the Company Shareholder Approval, the Company (acting under the direction of the Special Committee) may, directly or EFIHindirectly through one or more affiliates or Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company and/or its Subsidiary to, and/or afford access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiary pursuant to an Acceptable Confidentiality Agreement to (provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company and/or its Subsidiary that is provided to any person given such access which was not previously made available to Parent or Merger Sub or their respective Representatives) any person (and/or its affiliates or Representatives) that has made or delivered to the Company an Alternative Proposal that was not solicited in breach of Section 4.16(b); provided that, prior to initiating any such action: (i) negotiate the Special Committee shall have determined in good faith (after consultation with stakeholders of the Debtors, facilitate its financial advisor and document the terms of a Permitted outside legal counsel) that such Alternative Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal, and (ii) the Special Committee or the Board of Directors of the Company shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of the Company under applicable Laws.
(c) Except as provided by Section 4.16 (d), at any time after the execution of this Agreement, neither the Special Committee nor the Board of Directors of the Company shall:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Recommendation in a manner adverse to Parent and/or Merger Sub (a “Change of Recommendation”); or
(ii) cause or permit the Company or its Subsidiary to enter into an any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted other similar agreement (an “Alternative Proposal; provided, however, that Acquisition Agreement”) relating to any Alternative Proposal (other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionAcceptable Confidentiality Agreement).
(d) Notwithstanding anything to the contrary contained set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, (x) if the Company is then in receipt of a bona fide written Alternative Proposal from any person that is not withdrawn and that the Special Committee or the Board of Directors of the Company concludes in good faith (after consultation with its financial advisor and outside legal counsel) that such Alternative Proposal constitutes a Superior Proposal after giving effect to all provisions of this Agreement, the Special Committee or the Board of Directors of the Company may (1) effect a Change of Recommendation, and/or (2) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, to the stockholders of the Company any Superior Proposal and authorize the Company to terminate this Agreement in accordance with Section 4(c7.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 7.1(h) and enters into a definitive Alternative Acquisition Agreement with respect to such provisions Superior Proposal), or (y) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiary and that has not occurred or is unknown to the Board of Directors of the Company as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Special Committee or the Board of Directors of the Company, then the Special Committee or the Board of the Directors of the Company may effect a Change of Recommendation, if and only if:
(i) in the case of clauses (x) and (y) above, the Special Committee or the Board of Directors of the Company shall not have determined in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action would be construed inconsistent with the directors’ exercise of their fiduciary obligations to permitthe Company Shareholders under applicable Laws;
(ii) in the case of clauses (x) and (y) above, (A) the Company shall have provided prior written notice to Parent at least five (5) days in advance (the “Notice Period”), to the effect that absent any revision to the terms and Oncor Holdings conditions of this Agreement, the Special Committee or the Board of Directors of the Company has resolved to effect a Change of Recommendation and/or to terminate this Agreement pursuant to Section 7.1(g) or Section 7.1(h), which notice shall specify, as applicable, in reasonable detail the material terms and Oncor conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and their Subsidiaries the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to the Company) or such Intervening Event; and shall nothave contemporaneously provided a copy of each relevant proposed transaction agreement with the party making such Superior Proposal and any other material documents, including the then current form of Alternative Acquisition Agreement; (B) prior to effecting such Change of Recommendation, or, in the case of a Superior Proposal, approving or recommending such Superior Proposal or terminating this Agreement to enter into a proposed definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause their respective Representatives not its financial and legal advisors to, during the Notice Period, negotiate with the Parent and its Representatives in good faith (to the extent the Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement as would allow the Special Committee or support the Board of Directors of the Company not to effect a Change of Recommendation and/or terminate this Agreement; and (C) the Special Committee or the Board of Directors of the Company shall have considered in good faith any filings changes to this Agreement offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect; provided that in the event of any material or substantive revisions to the Alternative Proposal that the Special Committee or the Board of Directors of the Company has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to the Parent and to comply with the requirements of Section 4.16 hereof (including this Section 4.16(d)) with respect to such new written notice; provided, that if the Superior Proposal involves an acquisition proposal described in Section 4.16(l)(ii), the parties expressly acknowledge that Parent’s rights hereunder shall, in addition to the foregoing, include the right not only to offer changes to this Agreement, but also the right to submit an Alternative Acquisition Agreement with respect to such Superior Proposal, which the Special Committee or submissions the Board of Directors of the Company shall consider in good faith and in compliance with the provisions of this Section 4.16(d), and if the Special Committee or inquiries the Board of Directors of the Company determines that any such Superior Proposal described in Section 4.16(l)(ii) no longer constitutes a Superior Proposal in relation to any Governmental Entitythe terms of Parent’s Alternative Acquisition Agreement, the Special Committee or the Board of Directors of the Company shall approve Parent’s Alternative Acquisition Agreement and this Agreement shall be deemed to have been terminated pursuant to Section 7.1(a) upon the parties entering into such Alternative Acquisition Agreement.
(iii) in the case of clause (x) above, the Company shall have complied in all material respects with its obligations under this Section 4.16 with respect to such Superior Proposal; and
(iv) in the case of clause (x)(2) above, the Company shall have validly terminated this Agreement in accordance with Section 7.1(h), including the PUCTpayment of the Termination Fee in accordance with Section 7.2(a). None of the Company, the FCC Special Committee or the Board of Directors of the Company shall enter into any binding agreement with any person to limit or not to give prior notice to Parent of its intention to affect a Change of Recommendation or to terminate this Agreement, in each case, in light of a Superior Proposal.
(e) The Company agrees that it will keep Parent reasonably informed regarding the matters contemplated by this Section 4.16 (including any Alternative Proposals). Without limiting the generality of the foregoing, (i) the Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Alternative Proposal are received by the Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the FERCstatus of any such discussions or negotiations, including any change in the Company’s intentions as previously notified and (ii) after the date hereof, the Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of persons and the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified.
(f) Nothing contained in this Agreement shall prohibit the Company, the Special Committee or the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, from (i) issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Special Committee or the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law or would constitute a violation of applicable Law. It is understood and agreed that, for purposes of this Agreement (including Article VII), a factually accurate public statement by the Company that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Special Committee or the Board of Directors of the Company, shall not constitute a Change of Recommendation or an approval or recommendation with respect to any Alternative Proposal.
(g) Other than with respect to its financial advisor, neither Parent nor Merger Sub, nor any of their respective affiliates, shall make or support enter into any public statements formal or informal arrangements or understandings (whether or not binding) with any person, or have any discussions or other communications with any other person, in any such case with respect to any Alternative Proposal or involving the Company.
(h) The Company shall not take any Permitted Alternative Proposal at action to exempt any time during the Approval Period; providedperson (other than Parent, however, that the Oncor Entities Merger Sub and their Representatives may respective affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (as if the Company were subject to Section 203, which as a Colorado corporation it is not) or otherwise cause such restrictions not to apply, other than in connection with a termination of this Agreement under Section 7.1(g) or Section 7.1(h) (and the payment of any fee required pursuant to Section 7.2).
(i) respond As used in this Agreement, “Acceptable Confidentiality Agreement” shall mean a customary confidentiality and standstill agreement that contains confidentiality and standstill provisions that are not materially less favorable in the aggregate to requests, communications, or directives received the Company than those contained in the Confidentiality Agreement (provided that such confidentiality agreement shall not be required to restrict a person from any Governmental Entity, whether in writing or otherwise, with respect to any communicating an Alternative Proposal to the Special Committee or Permitted Alternative Proposalthe Board of Directors of the Company, and (ii) take provided further that such action as required, confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or reasonably requested without solicitation, by a Governmental Request or Order having the effect of otherwise prohibiting the Company from compliance with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis provisions of material developments in connection therewith this Section 4.16 or, to the extent not prohibited by applicable Law or applicable, a confidentiality agreements with third parties.
(e) For purposes agreement entered into prior to the execution of this Letter Agreement:.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ampio Pharmaceuticals, Inc.)
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except Except as specifically expressly permitted by this Section 4(c) with respect to a Permitted Alternative Proposal5.3, during the period commencing on from the date hereof until the Bankruptcy Court enters an order approving the Merger Agreement (such dateInitial Closing Date, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor Company shall not, and the Company shall cause each of its Subsidiaries and their respective Subsidiaries Representatives not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents directly or representatives of any Oncor Entity (collectively, “Representatives”) not toindirectly, (i) initiate, solicit, propose, knowingly encourage or knowingly inducetake any action that would reasonably be expected to encourage or facilitate any inquiry or the making of any proposal or offer that constitutes, the submission ofor would reasonably be expected to result in, any an Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain participate in any discussions or continue negotiations with any Person with respect to, or provide any Alternative Proposalinformation or data concerning the Company or its Subsidiaries to any Person relating to, any proposal or offer that constitutes, or would reasonably be expected to result in, an Alternative Proposal (other than to state that the Company is not permitted to have discussions), (iii) enter into any written acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle principle, or any other agreement (whether other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(b)) relating to an Alternative Proposal (an “Alternative Acquisition Agreement”) or not legally binding (iv) publicly propose to do any of the actions prohibited by any of clauses (i), (ii) or (iii). Subject to Section 5.3(b), the Company and whether its Subsidiaries shall, and the Company shall instruct and use its commercially reasonable efforts to cause its Subsidiaries and their respective Representatives to, immediately cease any solicitations, discussions or not oral or written) negotiations with any Person that may be ongoing with respect to any Alternative Proposal, or any inquiry or proposal that may reasonably be expected to lead to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes Promptly following execution of this Letter Agreement, the reasonable best efforts Company shall request the prompt return or destruction of Oncor Holdings all confidential information previously furnished to any Person in connection with a potential Alternative Proposal and Oncor shall not include the expenditure of terminate all physical and electronic dataroom access previously granted to any fees such Person or expenses his or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigationher Representatives.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in this Section 4(a)5.3, prior to the time the Stockholder Approval is obtained, if the Company receives a bona fide written Alternative Proposal from any Person, which Alternative Proposal did not result from any breach of Oncor Holdings this Section 5.3, the Company and Oncor its Representatives may correspond with such Person in writing solely to clarify the terms and their Subsidiaries mayconditions thereof so as to determine whether such Alternative Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and, but only upon subject to compliance with this Section 5.3,
(i) the request Company and its Representatives may provide information (including non-public information and data) regarding, and afford access to, the business, properties, assets, books, records and personnel of the Company to such Person if the Company receives from such Person (or EFIH, (ihas received from such Person) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposalexecuted Acceptable Confidentiality Agreement; provided, howeverthat the Company shall, substantially concurrently with the time it is provided to such Person, make available the Investor any information concerning the Company or its Subsidiaries that other than is provided to any required disclosure Person given such access that was not previously made available to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative ProposalInvestor, and (ii) take the Company and its Representatives may engage in, enter into or otherwise participate in any discussions or negotiations with such action as required, or reasonably requested without solicitation, by a Governmental Request or Order Person with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice if and only to the Purchasers of extent that prior to taking any requests, communications or directives received by them of the type action described in clause (i) or (ii) above, the Board of Directors determines in good faith (after consultation with outside counsel and its financial advisors) that such Alternative Proposal constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and that the failure to take the actions set forth in clauses (i) and (ii) above would be inconsistent with its fiduciary duties under applicable Law.
(c) The Company shall promptly (and keep in any event within twenty-four (24) hours) notify the Purchasers reasonably informed on Investor of (i) any request for information from the Company or any of its Representatives by any Person that, to the Knowledge of the Company, is seeking to make, or has made, an Alternative Proposal, (ii) the receipt of any Alternative Proposal, specifying the material terms thereof and the identity of the Person making such Alternative Proposal and (iii) any material modifications to the financial or other material terms and conditions of such Alternative Proposal.
(d) Except as set forth in this Section 5.3, neither the Board of Directors nor any committee thereof shall (x) (A) change, withhold, withdraw, qualify or modify, in a reasonably prompt basis manner adverse to Investor (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Recommendation, (B) fail to include the Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Alternative Proposal, (D) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Alternative Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company stockholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided that a customary “stop, look and listen” communication by the Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited), within ten (10) Business Days after commencement of such tender offer or exchange offer, (E) within three (3) Business Days of a written request by Investor for the Board of Directors to reaffirm the Recommendation following the date any Alternative Proposal or any material developments modification thereto is first published or sent or given to the Stockholders, fail to, or fail to cause the Company to, issue a press release that reaffirms the Recommendation (which request may only be made once with respect to any Alternative Proposal and each material modification thereof) or (F) resolve or agree to do any of the foregoing (any action set forth in connection therewith the foregoing clauses (A) through (F), a “Change of Recommendation”) or (y) authorize, adopt or approve or publicly propose to authorize, adopt or approve, an Alternative Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement or any other Contract requiring the Company to abandon, terminate or fail to consummate the Contemplated Transactions. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Stockholder Approval is obtained, the Board of Directors may, if the Company receives an Alternative Proposal that the Board of Directors determines in good faith (after consultation with its outside counsel and its financial advisors) constitutes a Superior Proposal, to the extent that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, authorize, adopt, or approve such Superior Proposal and cause or permit the Company to terminate this Agreement pursuant to Section 8.1(c)(i) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Board of Directors may take such actions only if:
(i) the Company shall have complied with its obligations under this Section 5.3;
(ii) the Company shall have provided prior written notice to Investor of the Board of Directors’ intention to take such actions at least five (5) Business Days in advance of taking such action (it being understood and agreed that any material change with respect to the financial or other terms and conditions of such Superior Proposal shall require a separate, prior written notice to Investor at least two (2) Business Days in advance of taking such action), which notice shall specify, as applicable, a reasonably detailed description of the material terms and conditions of the Alternative Proposal received by the Company that constitutes a Superior Proposal, including an unredacted copy of the relevant proposed transaction agreements with, and the identity of, the party making the Alternative Proposal;
(iii) after providing such notice and prior to taking such actions, the Company shall have negotiated, and shall have caused its Representatives to negotiate, with Investor and its Representatives in good faith (to the extent Investor desires to negotiate) during such five (5) Business Day period or two (2) Business Day period, as the case may be, to make such adjustments in the terms and conditions of this Agreement and the other Transaction Documents as would permit the Board of Directors not prohibited to take such actions; and
(iv) the Board of Directors shall have considered in good faith any changes to this Agreement and the other Transaction Documents that may be offered in writing by applicable Law the Investor by 5:00 p.m. Eastern Time on the fifth (5th) Business Day of such five (5) Business Day period or confidentiality agreements the second (2nd) Business Day of such two (2) Business Day period, as the case may be, and shall have determined in good faith, after consultation with third partiesoutside counsel and its financial advisors, that the Alternative Proposal received by the Company would continue to constitute a Superior Proposal, in each case, if such changes offered in writing by the Investor were given effect.
(e) For purposes Subject to the provisos in this Section 5.3(e), nothing contained in this Section 5.3 shall be deemed to prohibit the Company, the Board of Directors or any committee of the Board of Directors, after consultation with its outside legal counsel, from (i) complying with its disclosure obligations under applicable Law with regard to an Alternative Proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), or (ii) making any “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company); provided, that in each case or clauses (i) and (ii), the Board of Directors expressly, publicly reaffirms the Recommendation after the issuance of such a statement after or as part of such communication; provided further, that neither the Board of Directors nor any committee thereof shall effect a Change of Recommendation unless the applicable requirements of Section 5.3(d) shall have been satisfied.
(f) The Company acknowledges and agrees that any violation of the restrictions set forth in this Section 5.3 by any Representatives of the Company or any Subsidiary thereof shall be deemed to be a breach of this Letter Agreement:Section 5.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Odyssey Marine Exploration Inc)
Alternative Proposals. (a) Notwithstanding anything to the contrary hereinset forth in this Agreement, except as specifically permitted during the period commencing with the execution of this Agreement and continuing until 12:01 a.m. (Eastern time) on the forty-first (41st) day after the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective affiliates and Representatives shall have the right (acting under the direction of the Special Committee), directly or indirectly, pursuant to an Acceptable Confidentiality Agreement: (i) to initiate, solicit and/or encourage the submission of one or more Alternative Proposals from one or more persons and/or their affiliates or Representatives, including by Section 4(cfurnishing to any person and/or its affiliates or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any person and/or its affiliates or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (provided that the Company shall promptly make available to the Parents any material non-public information concerning the Company and/or its Subsidiaries that is provided to any person given such access which was not previously made available to the Parents or Merger Sub or their respective Representatives), (ii) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more persons and/or their affiliates or Representatives with respect to a Permitted one or more Alternative Proposals or any other proposals that could lead to an Alternative Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Alternative Proposals or any other proposals that could lead to any Alternative Proposals.
(b) Subject to the provisions of this Section 5.3, on the No-Shop Period Start Date, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other representatives to, cease and cause to be terminated any discussions or negotiations with any person that would otherwise be prohibited by this Section 5.3(b). Promptly following the No-Shop Period Start Date, the Company shall deliver a written notice to each such person to the effect that, subject to the provisions of this Section 5.3, the Company is ending all discussions and negotiations with such person with respect to any Alternative Proposal, effective on and from the No-Shop Period Start Date, and the notice shall also request such person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 5.3, during the period commencing on the date No-Shop Period Start Date and continuing until the Bankruptcy Court enters an order approving earlier to occur of the Merger Agreement (such dateEffective Time and the Termination Date, the “Approval Date”) Company and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor its Subsidiaries shall not, and shall use its and their reasonable best efforts to cause each of its and their respective Subsidiaries Representatives not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents directly or representatives of any Oncor Entity (collectively, “Representatives”) not toindirectly, (i) initiate, solicit, propose, initiate or knowingly encourage any inquiry with respect to, or knowingly inducethe making, the submission or announcement of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order (ii) furnish to satisfy its fiduciary obligations and its obligations pursuant any person (other than the Parents or Merger Sub or their respective designees) any non-public information relating to the LLC Agreements and Company and/or its Subsidiaries, or afford to any person access to the Investor Rights Agreement and maybusiness, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than the Parents or Merger Sub or their respective designees), in response any such case relating to communications from an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (without iii) engage in, continue or otherwise limiting participate in any discussions or negotiations regarding any Alternative Proposal with any person, except to notify such person as to the existence of the provisions of this Section 45.3, (iv) approve, endorse or recommend an Alternative Proposal, (v) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of its direct equityholders any such standstill or confidentiality agreement that restricts the ability of a person to communicate an Alternative Proposal to the Special Committee or the Board of Directors of the Company), or anti-takeover laws, (vi) otherwise knowingly facilitate any third party who makes effort or seeks attempt by any person to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iiivii) enter into any written letter of intent, intent or agreement in principle or other any agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of providing for any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including other than any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Acceptable Confidentiality Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained set forth in this Section 4(a)5.3 or elsewhere in this Agreement, any of Oncor Holdings at all times during the period commencing on the No-Shop Period Start Date and Oncor and their Subsidiaries may, but only upon continuing until the request receipt of the Company Stockholder Approval, the Company (acting under the direction of the Special Committee) may, directly or EFIHindirectly through one or more affiliates or Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company and/or its Subsidiaries to, and/or afford access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to (provided that the Company shall promptly make available to the Parents and Merger Sub any material non-public information concerning the Company and/or its Subsidiaries that is provided to any person given such access which was not previously made available to the Parents or Merger Sub or their respective Representatives) any person (and/or its affiliates or Representatives) that has made or delivered to the Company an Alternative Proposal that was not solicited in breach of Section 5.3(b); provided that, prior to initiating any such action: (i) negotiate the Special Committee shall have determined in good faith (after consultation with stakeholders of the Debtors, facilitate its financial advisor and document the terms of a Permitted outside legal counsel) that such Alternative Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal, and (ii) enter into an agreement the Special Committee or agreements the Board of Directors of the Company shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with the stakeholders directors’ exercise of their fiduciary obligations to the stockholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the Company under applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionLaws.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement (whether before or after the No-Shop Period Start Date), neither the Special Committee nor the Board of Directors of the Company shall:
(i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Recommendation in a manner adverse to the Parents and/or Merger Sub (a “Change of Recommendation”); or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any Alternative Proposal (other than any Acceptable Confidentiality Agreement).
(e) Notwithstanding anything to the contrary contained set forth in this Agreement, at any time prior to the receipt of the Company Stockholder Approval, (x) if the Company is then in receipt of a bona fide written Alternative Proposal from any person that is not withdrawn and that the Special Committee or the Board of Directors of the Company concludes in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal after giving effect to all adjustments to the terms of this Agreement, the Financing Commitments and/or the Limited Guarantee which may be offered by the Parents pursuant to clause (ii) below, the Special Committee or the Board of Directors of the Company may (1) effect a Change of Recommendation, and/or (2) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, to the stockholders of the Company any Superior Proposal and authorize the Company to terminate this Agreement in accordance with Section 4(c7.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, that in such event under this clause (2), the Company concurrently terminates this Agreement pursuant to Section 7.1(h) and enters into a definitive Alternative Acquisition Agreement with respect to such provisions Superior Proposal), or (y) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Board of Directors of the Company as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Special Committee or the Board of Directors of the Company, then the Special Committee or the Board of the Directors of the Company may effect a Change of Recommendation, if and only if:
(i) in the case of clauses (x) and (y) above, the Special Committee or the Board of Directors of the Company shall not have determined in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action would be construed inconsistent with the directors’ exercise of their fiduciary obligations to permitthe stockholders of the Company under applicable Laws;
(ii) in the case of clauses (x) and (y) above, (A) the Company shall have provided prior written notice to the Parents at least five (5) days in advance (the “Notice Period”), to the effect that absent any revision to the terms and Oncor Holdings conditions of this Agreement, the Special Committee or the Board of Directors of the Company has resolved to effect a Change of Recommendation and/or to terminate this Agreement pursuant to Section 7.1(g) or Section 7.1(h), which notice shall specify, as applicable, in reasonable detail the material terms and Oncor conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and their Subsidiaries the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to the Company) or such Intervening Event; and shall nothave contemporaneously provided a copy of each relevant proposed transaction agreement with the party making such Superior Proposal and any other material documents, including the then current form of Alternative Acquisition Agreement; (B) prior to effecting such Change of Recommendation, or, in the case of a Superior Proposal, approving or recommending such Superior Proposal or terminating this Agreement to enter into a proposed definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, negotiate with the Parents and their respective Representatives in good faith (to the extent that the Parents desire to negotiate) to make such adjustments in the terms and conditions of this Agreement as would allow the Special Committee or the Board of Directors of the Company not toto effect a Change of Recommendation and/or terminate this Agreement; and (C) the Special Committee or the Board of Directors of the Company shall have considered in good faith any changes to this Agreement, make the Financing Commitments and the Limited Guarantee offered in writing by the Parents and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect; provided that in the event of any material or support substantive revisions to the Alternative Proposal that the Special Committee or the Board of Directors of the Company has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to the Parents and to comply with the requirements of this Section 5.3 (including this Section 5.3(e)) with respect to such new written notice; provided, that if the Superior Proposal involves an acquisition proposal described in Section 5.3(l)(ii), the parties expressly acknowledge that the Parents’ rights hereunder shall, in addition to the foregoing, include the right not only to offer changes to this Agreement, but also the right to submit an Alternative Acquisition Agreement with respect to such Superior Proposal, which the Special Committee or the Board of Directors of the Company shall consider in good faith and in compliance with the provisions of this Section 5.3(e), and if the Special Committee or the Board of Directors of the Company determines that any filings such Superior Proposal described in Section 5.3(l)(ii) no longer constitutes a Superior Proposal in relation to the terms of the Parents’ Alternative Acquisition Agreement, the Special Committee or the Board of Directors of the Company shall approve the Parents’ Alternative Acquisition Agreement and this Agreement shall be deemed to have been terminated pursuant to Section 7.1(a) upon the parties entering into such Alternative Acquisition Agreement.
(iii) in the case of clause (x) above, the Company shall have complied in all material respects with or submissions or inquiries its obligations under this Section 5.3 with respect to any Governmental Entitysuch Superior Proposal; and
(iv) in the case of clause (x)(2) above, the Company shall have validly terminated this Agreement in accordance with Section 7.1(h), including the PUCTpayment of the Termination Fee in accordance with Section 7.2(a). None of the Company, the FCC and Special Committee or the FERCBoard of Directors of the Company shall enter into any binding agreement with any person to limit or not to give prior notice to the Parents of its intention to effect a Change of Recommendation or to terminate this Agreement, in each case, in light of a Superior Proposal.
(f) The Company agrees that it will keep the Parents reasonably informed regarding the matters contemplated by this Section 5.3 (including any Alternative Proposals). Without limiting the generality of the foregoing, (i) the Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parents if any proposals or make or support any public statements offers with respect to any an Alternative Proposal are received by the Company or any Permitted Alternative Proposal at of its Representatives indicating, in connection with such notice, the identity of the person or group of persons making such offer or proposal, the material terms and conditions of any time during the Approval Period; providedproposals or offers (including, howeverif applicable, that the Oncor Entities and their Representatives may (i) respond to copies of any written requests, communicationsproposals or offers, including proposed agreements) and thereafter shall keep the Parents reasonably informed, on a prompt basis, of the status and terms of any such proposals or directives received from offers (including any Governmental Entityamendments thereto) and the status of any such discussions or negotiations, whether including any change in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, the Company’s intentions as previously notified and (ii) take such action as requiredfollowing the No-Shop Period Start Date, the Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parents if any non-public information is requested from, or reasonably requested without solicitationany discussions or negotiations are sought to be initiated or continued with, by a Governmental Request the Company or Order any of its Representatives indicating, in connection with respect to such Alternative Proposal notice, the identity of the person or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to group of persons and the Purchasers status of any requestssuch discussions or negotiations, communications including any change in the Company’s intentions as previously notified.
(g) Nothing contained in this Agreement shall prohibit the Company, the Special Committee or directives received by them the Board of Directors of the type described in clause Company, directly or indirectly through advisors, agents or other intermediaries, from (i) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 or 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:making any disclosure
Appears in 1 contract
Sources: Merger Agreement (RCN Corp /De/)
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such date, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor Seller agrees that it shall not, and Seller shall cause each of their its Affiliates and its and its Affiliates' respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) Representatives not to, (i) directly or indirectly initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from facilitate (without otherwise limiting the provisions including by way of this Section 4furnishing information) any inquiries or the making or submission of its direct equityholders any proposal that constitutes, or any third party who makes or seeks could reasonably be expected to make lead to, an unsolicited Alternative Proposal, make available public and (ii) participate or engage in discussions or negotiations with, or disclose any non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate data relating to Seller or any of its Affiliates or afford access to the Oncor Entities than terms properties, books or records of the Confidentiality Agreement) so long as such Oncor Entity promptly provides Seller or makes available any of its Affiliates to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, that has made an Alternative Proposal or to any Person in contemplation of an Alternative Proposal, or (iii) accept an Alternative Proposal or enter into any written agreement, including any letter of intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement similar agreement, arrangement or understanding, (whether A) constituting or not legally binding related to, or that is intended to or could reasonably be expected to lead to, any Alternative Proposal or (B) requiring, intended to cause, or which could reasonably be expected to cause Seller to abandon, terminate or fail to consummate the sale and whether transfer of the Assets and Stock to Buyer or not oral any other transaction contemplated by this Agreement.
(b) Seller shall advise Buyer in writing promptly (but in no event more than the later of 24 hours after Seller's or writtenany Affiliate's receipt thereof) with respect to of (i) any request for information by any Person in contemplation of an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of (ii) any Alternative ProposalProposal received from any Person, including, unless prohibited by applicable Law, (iii) the material terms and conditions of any such Alternative Proposal request or proposal, and (including any subsequent material modification to such material terms and conditionsiv) and the identity of the Person or group making the same. Unless prohibited by applicable Lawany such request, Oncor Holdings Alternative Proposal or inquiry, and Oncor Seller shall keep Parent reasonably informed on a reasonably current basis promptly provide to Buyer copies of any written materials received in connection with any of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a)foregoing.
(c) Notwithstanding anything to For purposes of this Agreement, “Alternative Proposal” shall mean any bona fide proposal, whether or not in writing, for the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders direct or indirect acquisition or purchase of any assets that constitute 10% or more of the Debtorsnet revenues, facilitate and document net income or the terms assets (based on the fair market value thereof) of a Permitted Alternative Proposal and the Business, or (ii) enter into an agreement direct or agreements with the stakeholders indirect acquisition or purchase of any of the Debtors regarding support for and/or financing of such Permitted Alternative ProposalStock; provided, however, that “Alternative Proposal” shall not be deemed to include any proposal to engage in any merger, consolidation, restructuring, or other business combination transaction, sale of shares of capital stock (other than any required disclosure tracking or similar shares related in whole or in part to the Purchasers hereunderBusiness or any part thereof), tender offer, exchange offer, recapitalization, stock repurchase program or other similar transaction involving Seller, so long as such transaction would not result in Seller ceasing to own and conduct all or any part of the Oncor Entities shall use reasonable best efforts (x) Business or ceasing to keep confidential own all or any solicitation, negotiation, facilitation, and documentation by part of the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law Assets or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionStock.
(d) Notwithstanding anything to Immediately after the contrary contained in Section 4(c)execution and delivery of this Agreement, such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall notSeller shall, and shall cause instruct its Affiliates and its and their respective Representatives not to, make terminate any existing activities, discussions or support negotiations with any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements parties conducted heretofore with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted possible Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on From and after the date the Bankruptcy Court enters an order approving the Merger Agreement (such date, the “Approval Date”) and ending on hereof until the earlier of the Purchase Closing Date Effective Time or the Termination Date (such periodtermination of this Agreement in accordance with its terms, the “Approval Period”), Oncor Holdings and Oncor Seller agrees that it shall not, and it shall cause Banshee and each Sold Subsidiary and all of their respective Subsidiaries not Affiliates to not, nor shall Seller, Banshee or any Sold Subsidiary authorize or permit any officer, director, employee, agent or Representative (including any investment banker, attorney, accountant or other adviser) of Seller, Banshee or any Sold Subsidiary to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents directly or representatives of any Oncor Entity (collectively, “Representatives”) not toindirectly or otherwise, (i) solicit, initiate, solicit, propose, knowingly encourage or knowingly induce, otherwise facilitate any inquiries or the submission of, of any proposals or offers from any Person that relates to any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders (ii) participate in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders discussions or negotiations regarding any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and (iii) cooperate with, or furnish or cause to be furnished any non-public information (but only if such equityholder concerning the Business or third party has executed a confidentially agreement assets of Seller, Banshee or any Sold Subsidiary to any Person in connection with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers)any Alternative Proposal, (iiiv) enter into, maintain into an agreement or continue negotiations understanding with any Person with respect to, relating to any Alternative Proposal, or (iiiv) otherwise approve or enter into any written letter of intent, agreement in principle agreements or other agreement (whether or not legally binding and whether or not oral or written) understandings with respect to an Alternative Proposalany of the foregoing. In addition, during Seller agrees that it will take the Approval Period, Oncor Holdings and Oncor necessary steps to promptly inform the individuals or entities referred to in the first sentence of this Section 6.10(a) of the obligations undertaken in this Section 6.10.
(b) Seller shall promptly advise Parent Buyer orally and in writing of any request for information or of any Alternative Proposal, includingor any inquiry, unless prohibited by applicable Lawoffer or proposal with respect to or which could lead to any Alternative Proposal (whether made directly to Seller, Banshee or any Sold Subsidiary, or any of their respective officers, directors, employees, agents, stockholders, members or Representatives), the material terms and conditions of such request, Alternative Proposal (including any subsequent material modification to such material terms and conditions) or inquiry, offer or proposal, and the identity of the Person making the same. Unless prohibited by applicable Lawany such request, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a)inquiry, offer or proposal.
(c) Notwithstanding anything Seller shall, and shall cause Banshee and each Sold Subsidiary to, immediately cease and cause to be terminated any existing discussion or negotiations with any Persons (other than Buyer or any of its Affiliates) conducted prior to the contrary contained in Section 4(a), date of this Agreement with respect to any of Oncor Holdings the foregoing and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than will exercise its rights under any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty such Persons to require the return or destruction of confidential information provided by Seller, Banshee and any Sold Subsidiary or any of their representatives to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionPersons.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such date, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Interim Period”), Oncor Holdings and Oncor shall not, shall cause each of their respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement))directors, officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not to, (i) initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In addition, during the Approval Interim Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Interim Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Datedate hereof, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement in force that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Interim Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such date, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Interim Period”), Oncor Holdings and Oncor shall not, shall cause each of their respective Subsidiaries not to, and shall use their commercially reasonable efforts to cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement))directors, officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents advisors or representatives of any Oncor Entity (collectively, “Representatives”) not to, (i) initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response respond to communications from (without otherwise limiting the provisions of this Section 44(a)) and make available public and non-public information to any of its direct equityholders equityholder or to any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) Proposal so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), ; (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, ; or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or writtenbinding) with respect to an Alternative Proposal. In addition, during the Approval Interim Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by a separate agreement or applicable Law, the material terms and conditions of such Alternative Proposal (including any subsequent material amendment or modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by a separate agreement or applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modificationsamendments or proposed amendments) of any Alternative Proposal. During the Approval Interim Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a) unless such other Person consents to identifying and providing to counsel to the Purchasers (under a reasonably acceptable confidentiality agreement) the information contemplated under this Section 4(a); provided, that for all purposes of this Letter Agreement, the commercially reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Datedate hereof, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person Persons with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a)Proposal.
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use commercially reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall use their commercially reasonable efforts to cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Interim Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, required or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Sources: Oncor Letter Agreement (Oncor Electric Delivery Co LLC)
Alternative Proposals. (a) Notwithstanding anything The Company agrees (x) that neither it nor any of its Subsidiaries shall, and the Company shall cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to the contrary herein, except as specifically permitted by Section 4(cits stockholders) with respect to a Permitted merger, acquisition, consolidation, share exchange or similar transaction involving, or any purchase of all or any significant portion of the assets or any securities of, the Company or any of its Subsidiaries (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 relating to an Alternative Proposal, during or otherwise facilitate (including by waiving the period commencing on the date the Bankruptcy Court enters terms of any confidentiality or standstill agreement) any effort or attempt to make or implement an order approving the Merger Agreement Alternative Proposal and (such datey) that it will immediately cease and cause to be terminated any existing activities, the “Approval Date”) and ending on the earlier discussions or negotiations with any parties conducted heretofore with respect to any of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor shall not, shall cause each of their respective Subsidiaries not toforegoing, and shall cause it will take the directors (other than necessary steps to inform the Minority Member Directors (as defined individuals or entities referred to above of the obligations undertaken in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not to, (i) initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 47.1.
(b) Notwithstanding the foregoing, nothing contained in this Section 7.1 shall prohibit the Board of Directors of the Company or its designees from furnishing information to or entering into discussions or negotiations with any of its direct equityholders person or any third party who entity that makes or seeks to make an unsolicited bona fide written Alternative Proposal, make available public if, and non-public only to the extent that, (w) the furnishing of such information is pursuant to a reasonable and customary confidentiality agreement, (but only if such equityholder or third party has executed a confidentially which confidentiality agreement with Oncor shall be on terms no less more favorable in the aggregate to such person or entity than those set forth in the Oncor Entities confidentiality agreement between the Company and Apollo Management, L.P.), (x) the Board of Directors of the Company determines in good faith after consultation with outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (y) the Board of Directors of the Company determines in good faith after consultation with its financial advisor that such Alternative Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person or entity making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement and (z) the Company is otherwise in compliance with this Section 7.1. Nothing in this Section 7.1 shall prevent the Company from complying with Rule 14e2 under the Exchange Act, to the extent applicable.
(c) The Company agrees that it will notify Sub immediately if any such inquiries or proposals are received by (including the identity of the party making the inquiry or proposal and the terms of the Confidentiality Agreement) so long as proposal), any such Oncor Entity promptly provides information is requested from the Company, or makes available any such negotiations or discussions are sought to be initiated or continued with the Company. The Company agrees that it will keep Sub informed, on an immediate basis, of the status and the terms of any such discussions or negotiations, including any amendments or modifications to the Purchasers such non-public information made available proposal.
(d) Nothing in this Section 7.1 shall (x) permit the Company to such equityholder or third party terminate this Agreement (to the extent it has not already been except as specifically provided or made available to the Purchasersin Article 9 hereof), (iiy) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iii) permit the Company to enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or writtenother than the confidentiality agreement contemplated by Section 7.1(b)(w)) with respect to an Alternative Proposal. In addition, Proposal during the Approval Periodterm of this Agreement, Oncor Holdings and Oncor shall promptly advise Parent in writing it being agreed that during the term of any Alternative Proposal, including, unless prohibited by applicable Lawthis Agreement, the material terms and conditions of such Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor Company shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall not enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers person that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking ofprovides for, or response toin any way facilitates, an Alternative Proposal, or (z) affect any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request obligation of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionunder this Agreement.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Alternative Proposals. (ai) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on beginning at the date of this Agreement and continuing until the Bankruptcy Court enters an order approving entry of the Merger Agreement (such dateApproval Order, the “Approval Date”) Company and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings EFIH and Oncor shall not, shall cause each of their respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement))directors, officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not shall have the right to: (x) solicit, (i) initiate, solicitencourage, proposeinduce or facilitate Acquisition Proposals, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order including by way of providing access to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information concerning the Company or its Subsidiaries to any Person pursuant to an Acceptable Confidentiality Agreement (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate as defined below); provided that, to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes extent not previously made available to Parent, the Purchasers such Company and EFIH shall substantially concurrently make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is provided by or on behalf of the Company or any of its Subsidiaries (or the Oncor Entities to the extent Parent is aware of the Oncor Entities providing such information) to any such Person which was not previously made available to such equityholder Parent or third party Merger Sub; (to the extent it has not already been provided or made available to the Purchasers), (iiy) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In additionAcquisition Proposals or otherwise cooperate with or assist or participate in, during or facilitate any such inquiries, proposals, discussions or negotiations; and (z) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any such Acquisition Proposal which the Approval PeriodCompany Board or the board of managers of EFIH determines in good faith (after consultation with their independent financial advisor and outside legal counsel, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, based on the material terms and conditions advice of such Alternative Proposal (including any subsequent material modification to such material terms and conditionscounsel) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking ofis, or response is reasonably likely to lead to, any action, suit, claim, cause of action or other form of litigationa Superior Proposal.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(cii) Notwithstanding anything to the contrary contained in herein, and subject to compliance with the other provisions of this Section 4(a)6.2, any during the period beginning at the entry of Oncor Holdings the Approval Order and Oncor continuing until the entry of the EFH Confirmation Order, the Company and EFIH and their Representatives shall have the right to: (x) (A) continue discussions or negotiations with respect to Acquisition Proposals with any Person (provided, that such Person is a party to an Acceptable Confidentiality Agreement (as defined below)) that has submitted prior to the entry of the Approval Order a written indicative bid that the Company or EFIH is in active negotiations over at the time of the entry of the Approval Order, and (B) have discussions or negotiations with (or otherwise encourage or facilitate) any Person that submits an unsolicited bona fide written Acquisition Proposal that did not arise from a breach of this Section 6.2 which the Company Board or the EFIH board of managers determines in good faith (in each case, after consultation with their independent financial advisor and outside legal counsel, and based on advice of such counsel) is, or is reasonably likely to lead to a Superior Proposal; provided, that such Persons are party to an Acceptable Confidentiality Agreement; (y) provide access to non-public information concerning the Company or its Subsidiaries may(including providing access to an online or physical dataroom) to any such Person; provided, but only upon that, to the request extent not previously made available to Parent, the Company and EFIH shall substantially concurrently make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is provided by or on behalf of the Company or EFIH, any of its Subsidiaries (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that Parent is aware of the Oncor Entities providing such information) to any such Person which was not previously made available to Parent or Merger Sub; and their Representatives may (iz) respond adopt, approve or recommend or propose to requestsadopt, communications, approve or directives received from any Governmental Entity, whether in writing recommend (publicly or otherwise, ) any such Acquisition Proposal which the Company Board or the board of managers of EFIH determines in good faith (after consultation with respect to any Alternative Proposal or Permitted Alternative Proposaltheir independent financial advisor and outside legal counsel, and (iibased on advice of such counsel) take such action as required, or reasonably requested without solicitation, by is a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Superior Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Sources: Merger Agreement (Sempra Energy)
Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on From the date hereof until the Bankruptcy Court enters an order approving the Merger Agreement (such dateClosing Date or, if earlier, the “Approval Date”) and ending on the earlier termination of the Purchase Closing Date or the Termination Date (such periodthis Agreement in accordance with Article X, the “Approval Period”), Oncor Holdings and Oncor Group Companies shall not, and the Company shall instruct and use its reasonable best efforts to cause each of their respective Subsidiaries its Representatives, not to, and shall cause the directors to (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not to, (ia) initiate, solicit, propose, knowingly encourage or knowingly induce, the submission of, engage in any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, or provide any non-public information or data concerning the Group Companies to any Person relating to, an Alternative Proposal or afford to any Person access to the business, properties, assets, or personnel of any Group Company in connection with an Alternative Proposal, (b) enter into any acquisition agreement, merger agreement, or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to an Alternative Proposal, (c) grant any waiver, amendment, or release under any confidentiality agreement or the anti-takeover laws of any state, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Alternative Proposal, (e) approve, endorse, or recommend, or propose to approve, endorse or recommend, an Alternative Proposal, or (iiif) agree or otherwise commit to enter into or engage in any written letter of intentthe foregoing, agreement in principle each case, other than with PACI, Merger Sub, or other agreement any of their respective Representatives.
(whether or b) Notwithstanding this Section 6.9, the Group Companies and their respective Representatives shall not legally binding be restricted with respect to any actions explicitly contemplated by this Agreement, including the issuance of additional shares of Company Series A-1 Preferred Stock and whether or not oral or writtenthe PIPE Investment.
(c) From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, the Group Companies shall, and shall instruct their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to an Alternative Proposal. In additionProposal other than PACI, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking ofMerger Sub, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretionRepresentatives.
(d) Notwithstanding anything to From and after the contrary contained date hereof until the Closing Date or, if earlier, the termination of this Agreement in Section 4(c)accordance with Article X, such provisions shall not be construed to permitthe Company will promptly, and Oncor Holdings and Oncor and their Subsidiaries shall notin any event within two Business Days of receipt, and shall cause their respective Representatives not tonotify PACI if it receives any proposal, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERCoffer, or make or support any public statements submission with respect to any an Alternative Proposal or any Permitted Alternative Proposal at any time during after the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes date of this Letter Agreement:.
Appears in 1 contract
Sources: Business Combination Agreement (PROOF Acquisition Corp I)
Alternative Proposals. Prior to the Effective Time, each of WWWX and the Acquisition Corp. agrees (a) Notwithstanding anything that neither it nor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to the contrary herein, except as specifically permitted by Section 4(cits shareholders) with respect to a Permitted Alternative Proposalmerger, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such dateacquisition, the “Approval Date”) and ending on the earlier of the Purchase Closing Date consolidation or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor shall not, shall cause each of their respective Subsidiaries not tosimilar transaction involving, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives purchase of any Oncor Entity (collectively, “Representatives”) not to, (i) initiateall or any significant portion of the assets of the Acquisition Corp. or of any Subsidiary of the Acquisition Corp., solicit(ii) any of the outstanding shares of Acquisition Corp. Common Stock or Preferred Stock or (iii) any of the outstanding shares of the capital stock or other equity interest of any Subsidiary of the Acquisition Corp. (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, proposeor provide any confidential information or data to, knowingly encourage or knowingly induce, the submission ofhave any discussions with, any person relating to an Alternative Proposal (excluding the Merger described in this Agreement), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) that it will notify Artra immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotia tions or discussions are sought to be initiated or continued with, it; provided, however, that an Oncor Entity may interact with its equityholders nothing contained in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) 4.1 shall prohibit the Board of Directors of WWWX from furnishing information to or entering into discussions or negotiations with, any of its direct equityholders person or any third party who entity that makes or seeks to make an unsolicited bona fide Alternative Proposal, make available public if, and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available that, (i) the Board of Directors of WWWX, determines in good faith that such action is required for the Board of Directors to the Purchasers)comply with its fiduciary duties to shareholders imposed by law, (ii) enter into, maintain or continue negotiations with any Person with respect prior to furnishing such information to, any Alternative Proposalor entering into discussions or negotiations with, such person or entity, WWWX provides written notice to Artra to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (iii) WWWX keeps Artra informed of the status and all material information with respect to any such discussions or negotiations. Nothing in this Section 4.1 shall (x) permit WWWX or Artra to terminate this Agreement (except as specifically provided in Article 6 hereof), (y) permit WWWX or the Acquisition Corp. to enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent Proposal for as long as this Agreement remains in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal effect (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Periodit being agreed that for as long as this Agreement remains in effect, neither Oncor Holdings WWWX nor Oncor the Acquisition Corp. shall enter into any agreement with any Person which prohibits person that provides for, or in any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or Oncor in accordance with this Section 4(a); provided, that for all purposes (z) affect any other obligation of this Letter AgreementWWWX, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses Acquisition Corp. or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigationMerger Sub under this Agreement.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
Appears in 1 contract
Sources: Merger Agreement (Artra Group Inc)
Alternative Proposals. (a) Notwithstanding anything The Unitholders will, and will cause their respective Subsidiaries and directors, officers, and employees, and will use commercially reasonable efforts to the contrary hereincause their respective other Representatives and their Affiliates to, except as specifically permitted by Section 4(c) immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Permitted an Alternative Proposal, during the period commencing on the date the Bankruptcy Court enters an order approving the Merger Agreement (such date. Except as permitted by this Section 2.1, the “Approval Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings and Oncor shall Unitholders will not, shall and will cause each of their respective Subsidiaries and directors, officers and employees not to, and shall will use commercially reasonable efforts to cause the directors (their respective other than the Minority Member Directors (as defined in the Oncor LLC Agreement)), officers, employees, investment bankers, attorneys, accountants Representatives and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) their Affiliates and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, propose, knowingly encourage or knowingly inducefacilitate any inquiry, the submission of, any Alternative Proposal; provided, however, proposal or offer that would reasonably be expected to lead to an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) enter into, maintain or continue negotiations with any Person with respect to, any Alternative Proposal, or (iiiii) enter into participate in any written letter of intentdiscussions or negotiations regarding, agreement in principle or other agreement furnish (whether or not legally binding and whether or not oral or writtenafford access to) with respect to an Alternative Proposal. In addition, during the Approval Period, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, the material terms and conditions of such Alternative Proposal (including Person any subsequent material modification non-public information that could reasonably be expected to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of give rise to any Alternative Proposal. During Promptly following the Approval Perioddate hereof, neither Oncor Holdings nor Oncor shall enter into any agreement with the Unitholders shall: (A) withdraw and terminate access that was granted to any Person which prohibits (other than the Parent Entities and their Representatives) to any Oncor Entity from providing “data room” (virtual or physical) that was established in connection with the transactions contemplated by the Merger Agreement and (B) exercise any contractual rights available to any of them to cause each Person (other than the Parent Entities and their Representatives) who received non-public or confidential information of any of the Partnership Entities or any of their Subsidiaries to cause such Persons to promptly return to the Purchasers that they are expressly entitled to receive from Oncor Holdings Unitholders or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of destroy such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) information. Notwithstanding anything to the contrary contained in this Section 4(a)2.1, if at any time following the date of Oncor Holdings this Agreement and Oncor prior to obtaining the Partnership Unitholder Approval, (1) the Partnership has received a written Alternative Proposal, which was not solicited after the date of this Agreement, that the Partnership Board believes is bona fide and their Subsidiaries did not result from a breach of this Section 2.1 or Section 6.5 of the Merger Agreement and (2) the Partnership Board, after consultation with its financial advisors and outside legal counsel, determines in good faith that such Alternative Proposal constitutes or could reasonably be expected to lead to or result in a Superior Proposal, then each Unitholder may, but only upon the request of the Company or EFIHsubject to clauses (x) and (y) below, (iI) negotiate furnish information, including confidential information, with stakeholders of respect to the Debtors, facilitate and document Partnership or its Affiliates to the terms of a Permitted Person making such Alternative Proposal and (iiII) enter into an agreement participate in discussions or agreements with the stakeholders of the Debtors negotiations regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, provided that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) (I) at least 24 hours prior to keep confidential any solicitationfurnishing such LA\4235453.7 US 3686386v.10 non-public information to, negotiationor entering into discussions or negotiations with, facilitationsuch Person, the Partnership gives Parent written notice of the identity of such Person, and documentation the intention to furnish non-public information to, or enter into discussions or negotiations with, such Person and (II) the Partnership received from such Person, and delivers to Parent a copy of, an executed confidentiality agreement containing provisions, including limitations on the use and disclosure of non-public written and oral information furnished to such Person by or on behalf of the applicable Oncor Partnership, not materially less favorable to the Partnership than the provisions of the Confidentiality Agreements are to the Partnership Entities of a Permitted Alternative Proposal and (y) the Partnership will provide to enter into confidentiality agreements Parent any non-public information was not previously provided or made available to Parent prior to or substantially concurrently with any counterparty providing or making available such non-public information to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case other Person.
(b) In addition to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions obligations of the Unitholders set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in this Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT2.1, the FCC Unitholders will promptly (and the FERCin no event later than twenty-four (24) hours after receipt) advise Parent in writing if any proposal, offer or inquiry is received by, any information is requested from, or make any discussions or support negotiations are sought to be initiated with, the Unitholders in respect of any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that the Oncor Entities and their Representatives may (i) respond to requests, communications, or directives received from any Governmental Entity, whether in writing or otherwise, with respect to any Alternative Proposal or Permitted Alternative Proposal, and (ii) take shall, in any such action as requirednotice to Parent, indicate the identity of the Person making such proposal, offer, or reasonably requested without solicitation, by a Governmental Request inquiry and the terms and conditions of any proposals or Order offers (and shall include with respect such notice copies of any written materials received from or on behalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shall promptly keep Parent reasonably informed of all material developments affecting the status and terms of any such proposals, offers, inquiries or requests (and such Unitholder shall promptly, and in any event within twenty-four (24) hours, provide Parent with copies of any additional written materials received by the Unitholders or that such Unitholder has delivered to any third party making an Alternative Proposal that relate to such proposals, offers, inquiries or Permitted Alternative Proposalrequests) and of the status of any such discussions or negotiations. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice Each Unitholder agrees that neither such Unitholder nor any of its Subsidiaries will enter into any agreement with any person subsequent to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes date of this Letter Agreement:Agreement which prohibits such Unitholder from providing any information to Parent in accordance with this Section 2.1.
Appears in 1 contract
Alternative Proposals. (ai) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposal, during the period commencing on beginning at the date of this Agreement and continuing until the Bankruptcy Court enters an order approving entry of the Merger Agreement (such dateApproval Order, the “Approval Date”) Company and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings EFIH and Oncor shall not, shall cause each of their respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement))directors, officers, employees, investment bankers, attorneys, accountants and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) not shall have the right to: (x) solicit, (i) initiate, solicitencourage, proposeinduce or facilitate Acquisition Proposals, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order including by way of providing access to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information concerning the Company or its Subsidiaries to any Person pursuant to an Acceptable Confidentiality Agreement (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate as defined below); provided that, to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes extent not previously made available to Parent, the Purchasers such Company and EFIH shall substantially concurrently make available to Parent and Merger Subs any material non-public information concerning the Company or its Subsidiaries that is provided by or on behalf of the Company or any of its Subsidiaries (or the Oncor Entities to the extent Parent is aware of the Oncor Entities providing such information) to any such Person which was not previously made available to such equityholder Parent or third party Merger Sub; (to the extent it has not already been provided or made available to the Purchasers), (iiy) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to an Alternative Proposal. In additionAcquisition Proposals or otherwise cooperate with or assist or participate in, during or facilitate any such inquiries, proposals, discussions or negotiations; and (z) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any such Acquisition Proposal which the Approval PeriodCompany Board or the board of managers of EFIH determines in good faith (after consultation with their independent financial advisor and outside legal counsel, Oncor Holdings and Oncor shall promptly advise Parent in writing of any Alternative Proposal, including, unless prohibited by applicable Law, based on the material terms and conditions advice of such Alternative Proposal (including any subsequent material modification to such material terms and conditionscounsel) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking ofis, or response is reasonably likely to lead to, any action, suit, claim, cause of action or other form of litigationa Superior Proposal.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(cii) Notwithstanding anything to the contrary contained in herein, and subject to compliance with the other provisions of this Section 4(a)6.2, any during the period beginning at the entry of Oncor Holdings the Approval Order and Oncor continuing until the entry of the EFH Confirmation Order, the Company and EFIH and their Representatives shall have the right to: (x) (A) continue discussions or negotiations with respect to Acquisition Proposals with any Person (provided, that such Person is a party to an Acceptable Confidentiality Agreement (as defined below)) that has submitted prior to the entry of the Approval Order a written indicative bid that the Company or EFIH is in active negotiations over at the time of the entry of the Approval Order, and (B) have discussions or negotiations with (or otherwise encourage or facilitate) any Person that submits an unsolicited bona fide written Acquisition Proposal that did not arise from a breach of this Section 6.2 which the Company Board or the EFIH board of managers determines in good faith (in each case, after consultation with their independent financial advisor and outside legal counsel, and based on advice of such counsel) is, or is reasonably likely to lead to a Superior Proposal; provided, that such Persons are party to an Acceptable Confidentiality Agreement; (y) provide access to non-public information concerning the Company or its Subsidiaries may(including providing access to an online or physical dataroom) to any such Person; provided, but only upon that, to the request extent not previously made available to Parent, the Company and EFIH shall substantially concurrently make available to Parent and Merger Subs any material non-public information concerning the Company or its Subsidiaries that is provided by or on behalf of the Company or EFIH, any of its Subsidiaries (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in Section 4(c), such provisions shall not be construed to permit, and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements with respect to any Alternative Proposal or any Permitted Alternative Proposal at any time during the Approval Period; provided, however, that Parent is aware of the Oncor Entities providing such information) to any such Person which was not previously made available to Parent or Merger Sub; and their Representatives may (iz) respond adopt, approve or recommend or propose to requestsadopt, communications, approve or directives received from any Governmental Entity, whether in writing recommend (publicly or otherwise, ) any such Acquisition Proposal which the Company Board or the board of managers of EFIH determines in good faith (after consultation with respect to any Alternative Proposal or Permitted Alternative Proposaltheir independent financial advisor and outside legal counsel, and (iibased on advice of such counsel) take such action as required, or reasonably requested without solicitation, by is a Governmental Request or Order with respect to such Alternative Proposal or Permitted Alternative Superior Proposal. The Oncor Entities shall, unless otherwise prohibited by Law, provide prompt notice to the Purchasers of any requests, communications or directives received by them of the type described in clause (i) or (ii) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith to the extent not prohibited by applicable Law or confidentiality agreements with third parties.
(e) For purposes of this Letter Agreement:
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Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 4(c) with respect to a Permitted Alternative Proposalcontained in this Agreement, during the period commencing beginning on the date of this Agreement and continuing until 12:01 a.m. (New York time) on the Bankruptcy Court enters an order approving 40th calendar day after the Merger date of this Agreement (such date, the “Approval No-Shop Period Start Date”) and ending on the earlier of the Purchase Closing Date or the Termination Date (such period, the “Approval Period”), Oncor Holdings the Company and Oncor shall not, shall cause each of its Subsidiaries and their respective Subsidiaries not to, and shall cause the directors (other than the Minority Member Directors (as defined in the Oncor LLC Agreement))directors, officers, employees, investment bankers, consultants, attorneys, accountants accountants, agents, advisors, Affiliates and other advisors, consultants, agents or representatives of any Oncor Entity (collectively, “Representatives”) shall have the right to (i) initiate, solicit and encourage any inquiry or the making of any proposal or offer that constitutes an Alternative Proposal, including by providing information (including non-public information or data) regarding, and affording access to, the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to (A) an Acceptable Confidentiality Agreement or (B) to the extent applicable, a confidentiality agreement entered into with such Person prior to the date of this Agreement; provided that the Company shall promptly (and in any event within forty-eight (48) hours) make available to Parent any non-public information concerning the Company or its Subsidiaries that, at any time after the date of this Agreement, is provided to any Person given such access that was not previously made available to Parent, and (ii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Persons or group of Persons with respect to any Alternative Proposals and cooperate with or assist or participate in or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Alternative Proposals. The Company shall promptly (and in any event within two (2) Business Days) notify Parent in writing of the identity of each Person or group from whom the Company receives a written Alternative Proposal after the execution of this Agreement and prior to the No-Shop Period Start Date and shall promptly (and in any event within two (2) Business Days) provide Parent a copy of such written Alternative Proposal or any written amendment thereto (including financing commitments with customary redactions). No later than three (3) Business Days after the No-Shop Period Start Date, the Company shall provide Parent a list of Excluded Parties, including the identity of each Excluded Party and a copy of the Alternative Proposal submitted by such Person on the basis of which the Board of Directors made the determination that such Person shall be an Excluded Party.
(b) Except as may relate to any Excluded Party (but only for so long as such Person or group is an Excluded Party) until the date which is twenty (20) days after the No-Shop Period Start Date (the “Cut-Off Date”) or as otherwise permitted by this Section 6.4, after the No-Shop Period Start Date, the Company and its Subsidiaries shall, and the Company shall instruct and use its commercially reasonable efforts to cause its and its Subsidiaries’ Representatives to, immediately (i) cease any activities permitted by Section 6.4(a), (ii) cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to any Alternative Proposal or a potential Alternative Proposal, (iii) terminate access to any physical or electronic data rooms relating to a possible Alternative Proposal and (iv) request that any such Person and its Representatives promptly return or destroy all confidential information concerning the Company and its Subsidiaries theretofore furnished thereto by or on behalf of the Company or any of its Subsidiaries, and destroy all analyses and other materials prepared by or on behalf of such Person that contain, reflect or analyze such information, in each case in accordance with the applicable confidentiality agreement between the Company and such Person.
(c) Except as may relate to any Excluded Party (but only for so long as such Person or group is an Excluded Party) until the Cut-Off Date or as otherwise permitted by this Section 6.4, from the No-Shop Period Start Date until the Effective Time (or, if earlier, the termination and abandonment of this Agreement in accordance with Article VIII), the Company and its Subsidiaries shall not, and the Company shall instruct and use its commercially reasonable efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) initiate, solicit, propose, knowingly encourage or knowingly inducefacilitate any inquiry, proposal or offer with respect to, or the making, submission or announcement of, any Alternative Proposal; provided, however, that an Oncor Entity may interact with its equityholders in order to satisfy its fiduciary obligations and its obligations pursuant to the LLC Agreements and the Investor Rights Agreement and may, in response to communications from (without otherwise limiting the provisions of this Section 4) any of its direct equityholders Proposal or any third party who makes or seeks to make an unsolicited Alternative Proposal, make available public and non-public information (but only if such equityholder or third party has executed a confidentially agreement with Oncor on terms no less favorable in the aggregate to the Oncor Entities than terms of the Confidentiality Agreement) so long as such Oncor Entity promptly provides or makes available to the Purchasers such non-public information made available to such equityholder or third party (to the extent it has not already been provided or made available to the Purchasers), (ii) engage in, enter into, maintain continue or continue otherwise participate in any discussions or negotiations with any Person with respect to, or provide any Alternative Proposalnon-public information or data concerning the Company or its Subsidiaries to any Person that has made or is, or (iii) enter into any written letter to the Knowledge of intentthe Company, agreement in principle or other agreement (whether or not legally binding and whether or not oral or written) with respect to considering making, an Alternative Proposal. In addition, during except as permitted under this Section 6.4, from the Approval Perioddate of this Agreement until the Effective Time, Oncor Holdings or, if earlier, the termination and Oncor abandonment of this Agreement in accordance with Article VIII, neither the Board of Directors nor any committee thereof shall promptly advise Parent in writing of (A) grant any Alternative Proposalwaiver, including, unless prohibited by applicable amendment or release under any Takeover Law, (B) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement (or terminate or fail to enforce such agreement) except solely to the material terms and conditions extent necessary to allow such Person to make a non-public proposal to the Board of such Directors, (C) effect a Change of Recommendation or (D) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, confidentiality agreement or any other similar agreement relating to or providing for any Alternative Proposal (including any subsequent material modification to such material terms and conditions) and the identity of the Person making the same. Unless prohibited by applicable Law, Oncor Holdings and Oncor shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including material modifications) of any Alternative Proposal. During the Approval Period, neither Oncor Holdings nor Oncor shall enter other than an Acceptable Confidentiality Agreement entered into any agreement with any Person which prohibits any Oncor Entity from providing information to the Purchasers that they are expressly entitled to receive from Oncor Holdings or Oncor in accordance with this Section 4(a6.4(d) (an “Alternative Acquisition Agreement”); provided, that for all purposes of this Letter Agreement, the reasonable best efforts of Oncor Holdings and Oncor shall not include the expenditure of any fees or expenses or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation.
(b) As of the Approval Date, Oncor Holdings and Oncor represent that as of such date, they are not in negotiations with any Person with respect to any Alternative Proposal and that there is no agreement that would prevent Oncor Holdings or Oncor from complying with their respective obligations under Section 4(a).
(c) Notwithstanding anything to the contrary contained in Section 4(a), any of Oncor Holdings and Oncor and their Subsidiaries may, but only upon the request of the Company or EFIH, (i) negotiate with stakeholders of the Debtors, facilitate and document the terms of a Permitted Alternative Proposal and (ii) enter into an agreement or agreements with the stakeholders of the Debtors regarding support for and/or financing of such Permitted Alternative Proposal; provided, however, that other than any required disclosure to the Purchasers hereunder, the Oncor Entities shall use reasonable best efforts (x) to keep confidential any solicitation, negotiation, facilitation, and documentation by the applicable Oncor Entities of a Permitted Alternative Proposal and (y) to enter into confidentiality agreements with any counterparty to any agreement regarding support for and/or financing of a Permitted Alternative Proposal, which confidentiality agreement provides that the existence and terms of such Alternative Proposal shall be kept confidential and shall not be publicly disclosed, except in each case to the extent required by applicable Law or pursuant to such confidentiality agreements (including any “cleansing” provisions set forth in such confidentiality agreements) as determined by the applicable Oncor Entities in their sole and absolute discretion.
(d) Notwithstanding anything to the contrary contained in this Section 6.4, at any time following the No-Shop Period Start Date and prior to the time the Company Shareholder Approval is obtained, if the Company receives a written Alternative Proposal from any Person (provided that such Alternative Proposal does not result from any material breach of the restrictions in this Section 6.4), the Company and its Representatives may contact such Person to clarify the terms and conditions thereof and (i) the Company and its Representatives may provide information (including non-public information and data) regarding, and afford access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to such Person if the Company receives from such Person (or has received from such Person) an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within forty-eight (48) hours) make available to Parent any non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent, and (ii) the Company and its Representatives may engage in, enter into, continue or otherwise participate in any discussions or negotiations with such Person with respect to such Alternative Proposal, if and only to the extent that, prior to taking any action described in clauses (i) or (ii) above, the Board of Directors determines in good faith that such Alternative Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal. For the avoidance of doubt, following the No-Shop Period Start Date and prior to the Cut-Off Date, the Company may continue to engage in the activities described in Section 4(c6.4(a) with respect to, and the restrictions set forth in Section 6.4(b) and Section 6.4(c) shall not apply to, any Excluded Party, including with respect to any amended or modified Alternative Proposal submitted by any Excluded Party following the No-Shop Period Start Date.
(e) After the No-Shop Period Start Date, the Company shall promptly (and, in any event, within forty-eight (48) hours of the Company’s Knowledge of any such event) notify Parent of its entry into any Acceptable Confidentiality Agreement and shall promptly (and in any event within forty-eight (48) hours of the Company’s Knowledge of any such event) notify Parent of the receipt of any Alternative Proposal or any amendment thereto, or any proposal or offer that could reasonably be expected to result in an Alternative Proposal (such proposal or offer, a “Qualifying Proposal”), indicating the identity of the Person or group making such provisions shall not be construed Alternative Proposal or amendment thereto or Qualifying Proposal and provide (i) a copy of such written Alternative Proposal or amendment thereto and any other written Qualifying Proposal provided (including financing commitments with customary redaction) to permit, the Company or any of its Subsidiaries and Oncor Holdings and Oncor and their Subsidiaries shall not, and shall cause their respective Representatives not to, make or support any filings with or submissions or inquiries to any Governmental Entity, including the PUCT, the FCC and the FERC, or make or support any public statements (ii) with respect to any Alternative Proposal or any Permitted amendment thereto or Qualifying Proposal not made in writing, a written summary of the material terms and conditions of each such Alternative Proposal at or such amendment thereto or Qualifying Proposal, and shall thereafter keep Parent informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight (48) hours of the Company’s Knowledge of any such event), of any material developments or modifications to the terms of any such Alternative Proposal or amendment thereto or Qualifying Proposal (including copies of any written proposed agreements) and the status of any discussions or negotiations relating to such material developments or modifications. The Company hereby agrees that it shall not and shall not permit its Subsidiaries to, enter into any agreement that prohibits or restricts it from providing to Parent the information contemplated by this Section 6.4(e) or the other provisions of this Section 6.4.
(f) Except as set forth in this Section 6.4(f), neither the Board of Directors nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Recommendation with respect to the Merger, (B) fail to include the Recommendation in the Proxy Statement, (C) approve, adopt, endorse or recommend, or publicly propose to approve, adopt, endorse or recommend to the shareholders of the Company, an Alternative Proposal or (D) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Alternative Proposal is commenced, fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, and provided that a customary “stop, look and listen” communication by the Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited), within ten (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoing, a “Change of Recommendation”) or (ii) authorize, adopt or approve or publicly propose to authorize, adopt or approve, an Alternative Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time during the Company Shareholder Approval Periodis obtained, the Board of Directors may (I) effect a Change of Recommendation if the Board of Directors determines in good faith (after consultation with its outside counsel and financial advisor) that, as a result of a development, occurrence, event, state of facts or change (other than an Alternative Proposal) with respect to the Company that was not known to the Board of Directors as of or prior to the execution and delivery of this Agreement (an “Intervening Event”), failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any adjustments to the terms and conditions of the Merger proposed by Parent in response to such Intervening Event); provided that such Change of Recommendation shall be solely with respect to such Intervening Event, and (II) if the Company receives an Alternative Proposal (provided that such Alternative Proposal does not arise from any material breach of the restrictions in this Section 6.4) that the Board of Directors determines in good faith (after consultation with outside counsel and its financial advisors) constitutes a Superior Proposal (taking into account any adjustments to the terms and conditions of the Merger proposed by Parent in response to such Alternative Proposal), authorize, adopt, or approve such Superior Proposal, grant a waiver, amendment or release under any Takeover Law with respect to such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 8.1(c)(ii); provided, however, that the Oncor Entities Board of Directors may take the actions described in clauses (I) or (II) if and their Representatives may only if:
(1) the Company shall have provided (i) respond prior written notice to requestsParent of the Board of Directors’ intention to take such actions at least four (4) Business Days in advance of taking such action, communicationswhich notice shall specify, as applicable, a reasonably detailed description of such Intervening Event or directives the material terms of the Alternative Proposal received from by the Company that constitutes a Superior Proposal, including the identity of the party making the Alternative Proposal, (ii) if applicable, a copy of such written Alternative Proposal or amendment thereto and any Governmental Entity, whether other written terms or proposals provided (including financing commitments subject to customary redaction) to the Company or any of its Subsidiaries in writing or otherwise, connection with such Alternative Proposal and (iii) with respect to any Alternative Proposal or Permitted Alternative Proposalamendment thereto not made in writing, a written summary of the material terms and (ii) take such action as required, or reasonably requested without solicitation, by a Governmental Request or Order with respect to conditions of each such Alternative Proposal or Permitted Alternative Proposal. The Oncor Entities shallsuch amendment thereto;
(2) after providing such notice and prior to taking such actions, unless otherwise prohibited by Lawthe Company shall have negotiated, provide prompt notice and shall have caused its Representatives to negotiate, with Parent in good faith (to the Purchasers extent Parent desires to negotiate) during such four (4) Business Day period to make such adjustments in the terms and conditions of this Agreement and the Financing as would permit the Board of Directors not to take such actions; and
(3) the Board of Directors shall have considered in good faith any requests, communications or directives received changes to this Agreement and the Financing that may be offered in writing by them Parent by 11:59 p.m. Eastern Time on the fourth (4th) Business Day of such four (4) Business Day period and shall have determined in good faith (A) with respect to the type actions described in clause (iI) or above, after consultation with outside counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under applicable Law not to effect the Change of Recommendation, and (iiB) above and keep the Purchasers reasonably informed on a reasonably prompt basis of material developments in connection therewith with respect to the extent not prohibited actions described in clause (II) above, after consultation with outside counsel and its financial advisor, that the Alternative Proposal received by applicable Law or confidentiality agreements the Company would continue to constitute a Superior Proposal, in each case, if such changes offered in writing by Parent were given effect. Each time material modifications to the terms of an Alternative Proposal determined to be a Superior Proposal are made (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company shall notify Parent of such modification and comply again with third parties.
the requirements of clauses (e1) For purposes – (3) above, with the time period set forth in each of this Letter Agreement:the preceding clauses (1) and (2) to be three (3) Business Days. With respect to any material change to the facts and
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Sources: Merger Agreement (Saks Inc)