Alternative Proposals. (a) Neither the Company nor any Company Subsidiary or Affiliate shall (and neither the Company nor any Company Subsidiary or Affiliate shall authorize or permit any of their respective officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, to), directly or indirectly, solicit, initiate or encourage any inquiry, proposal or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any of its Affiliates or representatives), concerning any proposal or offer for a merger, share exchange, consolidation, recapitalization, asset acquisition or other business combination or similar transaction involving the Company or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% or more of the outstanding Common Stock or voting power in, or 20% or more of the fair market value of the assets of, the Company or any Company Subsidiary other than the Transactions (an ''Alternative Proposal"), or otherwise cooperate in any way with, or participate in, facilitate or actively encourage any effort or attempt by, any person or group (other than Parent, any of its Affiliates or representatives) to do or seek any of the foregoing, except that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any Alternative Proposal, or enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response to a Superior Proposal that is submitted by such entity or group, and may, subject to providing prior written notice to Parent of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company Board to acquire more than a majority of the Shares then outstanding on a fully diluted basis or all or substantially all of the assets of the Company, which the Company Board determines in good faith, based on the written advice of the Company's financial advisors, to be more favorable from a financial point of view to the Company' s stockholders than the Offer and the Merger, and which is neither subject to the receipt of any necessary financing nor otherwise on terms less favorable than the terms hereof and which in the opinion of the Company Board, based on the written advice of the Company's financial advisors, such entity or group has the financial capacity to consummate (a "Superior Proposal"), (B) the Company Board believes in good faith, based on the advice of its outside legal counsel, that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company furnishes such information to such entity or group pursuant to an appropriate confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement, and (D) neither the Company nor any Company Subsidiary or Affiliate, nor any of their respective officers, directors, employees, representatives or agents, shall have violated any of the restrictions set forth in this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent. (b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day period.
Appears in 2 contracts
Sources: Merger Agreement (Plato Holdings Inc), Merger Agreement (Plato Holdings Inc)
Alternative Proposals. The Company agrees (a) Neither that, between the Company date hereof and the earlier of the Effective Time or the termination of this Agreement in accordance with Article 8, neither it nor any Company Subsidiary or Affiliate of its Subsidiaries shall, and it shall (direct and neither the Company nor any Company Subsidiary or Affiliate shall authorize or permit any of their respective use its best efforts to cause its officers, directors, employees, agents and representatives and agents, (including, but without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the "Representatives") not limited to, investment bankersinitiate, attorneys and accountants, to)solicit or encourage, directly or indirectly, solicit, initiate any inquiries or encourage any inquiry, proposal the making or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any implementation of its Affiliates or representatives), concerning any proposal or offer for a merger(including, share exchangewithout limitation, consolidation, recapitalization, asset acquisition or other business combination or similar transaction involving the Company or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% its stockholders) with respect to a merger, acquisition, consolidation or more of the outstanding Common Stock or voting power insimilar transaction involving, or 20% any purchase of all or more of the fair market value any significant portion of the assets or any equity securities (other than pursuant to outstanding Options, Warrants and Purchase Rights) of, the Company or any Company Subsidiary other than the Transactions 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, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise cooperate in any way with, or participate in, facilitate or actively encourage any effort or attempt by, any person to make or group (other than Parent, any of its Affiliates or representatives) to do or seek any of the foregoing, except that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any implement an Alternative Proposal, or enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Upon execution of this Agreement, the Company ; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding , and it will take the foregoingnecessary steps to inform such parties of the obligations undertaken in this Section 6.1; and (c) that it will notify Purchaser immediately of the identity of the potential acquiror and the terms of such person's or entity's proposal if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, the Company; provided, however, that nothing contained in this Section 6.1 shall prohibit the Company or its Subsidiaries or its Representatives, upon approval by the Board, from (i) prior to the time of acceptance of Shares for payment of shares of Common Stock by Merger Sub pursuant to the Offer, furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal to acquire the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response pursuant to a Superior Proposal that is submitted by such entity or groupmerger, and mayconsolidation, subject to providing prior written notice to Parent share exchange, purchase of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company Board to acquire more than a majority of the Shares then outstanding on a fully diluted basis or all or substantially all of the assets of the Company, which a business combination or other similar transaction, if, and only to the Company Board determines in good faithextent that, based on the written advice of (A) such proposal was not solicited, encouraged or knowingly facilitated by the Company's financial advisors, to be more favorable its Subsidiaries or their agents in violation of this Section 6.1 or the letter, dated May 27, 1999, from a financial point of view Wonderware Corporation to the Company' s stockholders than the Offer and the Merger, and which (B) such proposal is neither not subject to the receipt of any necessary financing nor otherwise on terms less favorable than financing, unless the terms hereof and which in the opinion of the Company Board, based on the written advice of the Company's financial advisors, such entity or group has the financial capacity to consummate (a "Superior Proposal"), (B) the Company Board believes in good faith, based on the advice of its outside legal counsel, that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company furnishes such information to such entity or group pursuant to an appropriate confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement, and (D) neither the Company nor any Company Subsidiary or Affiliate, nor any of their respective officers, directors, employees, representatives or agents, shall have violated any of the restrictions set forth in this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent.
(b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day period.determined
Appears in 2 contracts
Sources: Merger Agreement (M Acquisition Corp), Merger Agreement (Marcam Solutions Inc)
Alternative Proposals. (a) Neither Prior to the time at which Buyer’s designees shall constitute a majority of the members of the Board of Directors of the Company, the Company agrees that neither it nor any Company Subsidiary or Affiliate of its Subsidiaries shall, and it shall (not permit its and neither the Company nor any Company Subsidiary or Affiliate shall authorize or permit any of their respective its Subsidiaries’ officers, directors, employees, agents and representatives and agents, (including, but not limited without limitation, any investment banker, attorney or accountant retained by any of the foregoing) (such persons, collectively, the “Representatives”) to, investment bankers, attorneys and accountants, to), (i) directly or indirectlyindirectly initiate, solicit, initiate solicit or in any way encourage any inquiryinquiries or the making, proposal implementation or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any announcement of its Affiliates or representatives), concerning any proposal or offer for (including, without limitation, any proposal or offer to the stockholders of the Company) with respect to a merger, reorganization, acquisition, tender offer, share exchange, consolidation, business combination, recapitalization, asset acquisition or other business combination liquidation, dissolution or similar transaction involving the Company involving, or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% purchase of, fifteen percent (15%) or more of the outstanding Common Stock net revenue, net income or voting power in, assets or 20% fifteen percent (15%) or more of the fair market value any class of the assets equity securities of, the Company or its Subsidiaries (any Company Subsidiary other than the Transactions (such proposal or offer being hereinafter referred to as an ''“Alternative Proposal"”), (ii) directly or otherwise cooperate indirectly engage in any way withnegotiations concerning, provide any confidential information or participate in, facilitate or actively encourage any effort or attempt bydata to, any person or group (other than Parent, relating to any of its Affiliates or representatives) to do or seek any of the foregoing, except proposal that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actconstitutes, or would reasonably be expected to lead to, an Alternative Proposal and (iiiii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any Alternative Proposal, or enter into any letter of intent, agreement in principle or definitive agreement understanding with respect any Person other than Buyer or Merger Sub with the intent to effect any Alternative Proposal. Upon execution of Proposal (other than the confidentiality and standstill agreements contemplated by Section 6.1(b)).
(b) Notwithstanding anything in this Agreement, Agreement to the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingcontrary, prior to the time of acceptance of Shares for payment pursuant Acceptance Date and to the Offer, extent the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response to a Superior receives an Alternative Proposal that its Board of Directors determines, after consultation with its legal and financial advisors, is submitted by such entity or group, and may, subject reasonably likely to providing prior written notice lead to Parent of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) herein), the Company and its Representatives may engage in any negotiations concerning, provide any confidential information or data to or otherwise have any discussions with, any person relating to such entity Alternative Proposal, or group has on an unsolicited basis submitted a otherwise facilitate any effort or attempt to make or implement such Alternative Proposal. For purposes of this Agreement, the term “Superior Proposal” means any bona fide written proposal to the Company Board to acquire more than Alternative Proposal involving a majority of the Shares then outstanding on a fully diluted basis net revenue, net income or all or substantially all of the assets of the Company, which Company and its Subsidiaries or a majority of the Company Common Stock or the voting power of the Company that the Company’s Board of Directors determines in good faith, based on after consultation with the written advice Company Financial Advisor or another financial advisor of the Company's financial advisorsnationally recognized reputation and outside legal counsel, to be (i) is more favorable from a financial point of view to the Company' s ’s current stockholders (in their capacities as stockholders) than the Offer transactions contemplated by this Agreement, (ii) is made by a third party that has the financial capability to consummate such Alternative Proposal and (iii) is reasonably capable of being consummated, in each case, taking into account all of the relevant facts and circumstances, including, without limitation, conditions to consummation, required regulatory approvals, and the Merger, and which is neither subject fees payable to Buyer in accordance with Section 8.5 of this Agreement. In addition to the receipt of any necessary financing nor otherwise on terms less favorable than the terms hereof and which in the opinion obligations of the Company Boardset forth in this Section 6.1, based on the Company shall promptly give oral and written advice notice to Buyer of each inquiry, offer, proposal or request for nonpublic information received by the Company with respect to any Alternative Proposal and each request for a waiver or release under any standstill or similar agreement, and, prior to entering into any negotiation, providing any information or having discussions regarding an Alternative Proposal, the Company shall give Buyer written notice of the Company's financial advisorsidentity of the Person making the Alternative Proposal and a copy of the Alternative Proposal (if in written or electronic form) or a written summary of the material terms thereof (if communicated to the Company and its Representatives orally). In addition, the Company shall inform Buyer promptly of all material developments with respect to the status and the terms of any substantive discussions or negotiations with respect to an Alternative Proposal and shall provide Buyer copies of such written proposals and any material amendments or revisions thereto or material correspondence related thereto. Prior to furnishing nonpublic information to, or entering into discussions or negotiations with, any other persons or entities, the Company shall enter into a customary confidentiality agreement with such person or entity (if the Company has not already entered into a customary confidentiality agreement with such person or group has the financial capacity to consummate (a "Superior Proposal"entity in connection with its exploration of strategic alternatives), it being understood that such confidentiality agreement (Bx) shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company Board believes in good faith, based on the advice of from satisfying its outside legal counsel, that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, hereunder and (Cy) the Company furnishes such information to such entity or group pursuant to an appropriate confidentiality agreement on terms shall be no less favorable to the Company than the SCA Confidentiality Agreement, and (D) neither the Company nor shall provide Buyer with a copy of such nonpublic information delivered to such person promptly following its delivery to the requesting party or, to the extent that such nonpublic information has been previously furnished by the Company to Buyer, advise Buyer of the nature of such nonpublic information delivered to such person promptly following its delivery to the requesting party.
(c) Nothing contained herein, shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to its stockholders if in the good faith judgment of its Board of Directors, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its obligations under applicable law.
(d) The Company Subsidiary will immediately cease and cause to be terminated any existing activities, discussions or Affiliate, nor negotiations with any other person (other than Buyer) that have been conducted heretofore with respect to a potential Alternative Proposal. The Company agrees to inform the following persons of their respective the obligations undertaken in this Section 6.1: its and its Subsidiaries’ officers, directors, key employees, representatives or agents, shall have violated financial advisors and any other persons who would reasonably be expected to take the types of the restrictions set forth in actions prohibited by this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent6.1.
(b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day period.
Appears in 1 contract
Alternative Proposals. (a) Neither Except as contemplated hereby, the Company nor any Company Subsidiary or Affiliate agrees that, prior to the earlier of the Effective Time and the termination of this Agreement pursuant to Section 8.1, it shall (not, and neither the Company nor any Company Subsidiary or Affiliate shall not authorize or permit any of their respective the Subsidiaries to, and shall use its reasonable best efforts to cause its and the Subsidiaries' directors, officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, to)representatives or affiliates, directly or indirectly, not to, solicit, initiate initiate, encourage or encourage facilitate (including by way of furnishing or disclosing non-public information) any inquiry, proposal inquiries or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any the making of its Affiliates or representatives), concerning any proposal or offer for a with respect to any merger, consolidation, share exchange, consolidation, recapitalization, asset acquisition or other business combination or similar transaction event involving the Company or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% or more of the outstanding Common Stock or voting power inSubsidiaries, or 20the acquisition of more than 10% or more of the fair market value capital stock of the assets of, the Company or any of the Subsidiaries or rights with respect thereto, or any material portion of the assets (except for sales of inventory in the ordinary course of business consistent with past practice) of the Company Subsidiary other than or any of the Transactions Subsidiaries (an ''"Alternative ProposalTransaction")) or negotiate, explore or otherwise cooperate engage in substantive discussions with any way with, or participate in, facilitate or actively encourage any effort or attempt by, any person or group Person (other than ParentPurchaser or its respective directors, any of its Affiliates or representatives) to do or seek any of the foregoingofficers, except that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking employees, agents, representatives and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any Alternative Proposalaffiliates), or enter into any letter of intentagreement, agreement in principle or definitive agreement with respect to any Alternative Proposal. Upon execution of Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, ; provided that the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingmay, prior to the time date of acceptance of Shares for payment pursuant to the OfferStockholders Meeting, the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response to a Superior Proposal that is submitted by such entity or group, and may, subject to providing prior written notice to Parent of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) such entity or group has on an unsolicited basis submitted a bona fide unsolicited written proposal with respect to the Company Board to acquire more than a majority of the Shares then outstanding on a fully diluted basis or all or substantially all of the assets of the Company, which the Company Board determines in good faith, based on the written advice of the Company's financial advisors, to be more favorable an Alternative Transaction received from a financial point third party after the date of view to the Company' s stockholders than the Offer and the Merger, and which is neither subject to the receipt of any necessary financing nor otherwise on terms less favorable than the terms hereof and which in the opinion of the Company Board, based on the written advice of the Company's financial advisors, such entity or group has the financial capacity to consummate this Agreement (a an "Superior Acquisition Proposal"), (B) if, and to the Company Board believes in good faith, based on the advice of its outside legal counsel, extent that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company furnishes such information to such entity or group pursuant to an appropriate person first enters into a confidentiality agreement with the Special Committee (as hereinafter defined) on terms no less favorable to the Company than the terms contained in the Confidentiality Agreement (the "Confidentiality Agreement"), dated February 26, 1999, between the Financial Advisor on behalf of the Special Committee and BRS, furnish or disclose non-public information to, and negotiate, explore or otherwise engage in substantive discussions with, or enter into any such agreement, arrangement or understanding with, such third party, if and so long as (i) the Special Committee determines in good faith by a majority vote, after consultation with the Financial Advisor (or other nationally reputable financial advisor) and legal advisors that such proposal (A) is more favorable to the stockholders of the Company (other than any stockholders participating in the buying group with Purchaser as contemplated by this Agreement) from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed in writing by Purchaser in response to such Acquisition Proposal), (B) is not subject to any material contingency, to which the other party thereto has not reasonably demonstrated in its written offer its ability to overcome or address, including the receipt of government consents or approvals (including any such approval required under the HSR Act), and (DC) neither is reasonably likely to be consummated and is in the best interests of the Stockholders of the Company nor (provided that, only for purposes of clauses (B) and (C) above, the Special Committee or its advisors shall be permitted to contact such third party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the likelihood of consummation) and (ii) the Company Subsidiary has received advice from its outside legal counsel that there is a material risk that failure to negotiate, explore or Affiliateotherwise engage in substantive discussions with, nor any or enter into an agreement with such third party will constitute a breach of their respective officersthe Board's fiduciary duties under applicable law; provided that, directorsimmediately prior to entering into an agreement for an Alternative Transaction, employees, representatives or agents, the Company shall have violated any complied with the provisions of the restrictions set forth in this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company8.1(c) hereof, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by shall comply with Section 8.3 hereof. Nothing in this Section 6.1 shall prohibit the Company or the Special Committee from making such disclosures to the Company's stockholders which, in connection with such proposal, discussion, negotiation or inquiry) and the identity judgment of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning Special Committee based upon the Company provided to any other party which was not previously provided to Parentadvice of outside counsel, is required under applicable law.
(b) Except The Special Committee shall as set forth below promptly as practicable advise Purchaser in this subsection (b), neither writing of the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation receipt by the Company Board Special Committee or its representatives, agents or advisors of any such committee inquiries or proposals (including any modifications or resubmissions of any proposals made prior to the Offerdate hereof) made after the date hereof, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company and of its intention to enter into any letter agreement, relating to an Alternative Transaction and any actions taken pursuant to Section 6.1(a) hereof and furnish to Purchaser a copy of intentsuch written proposals, if any.
(c) Neither the Company nor any of the Subsidiaries shall cancel, terminate, amend, modify or waive any of the terms of any confidentiality or standstill agreement in principle or definitive agreement executed with respect to the Company by any Alternative Proposal. Notwithstanding the foregoing, other party prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day perioddate of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Osullivan Industries Holdings Inc)
Alternative Proposals. (a) Neither Prior to the time at which Buyer’s designees shall constitute a majority of the members of the Board of Directors of the Company, the Company agrees that neither it nor any Company Subsidiary or Affiliate of its Subsidiaries shall, and it shall (not permit its and neither the Company nor any Company Subsidiary or Affiliate shall authorize or permit any of their respective its Subsidiaries’ officers, directors, employees, agents and representatives and agents, (including, but not limited without limitation, any investment banker, attorney or accountant retained by any of the foregoing) (such persons, collectively, the “Representatives”) to, investment bankers, attorneys and accountants, to), (i) directly or indirectlyindirectly initiate, solicit, initiate solicit or in any way encourage any inquiryinquiries or the making, proposal implementation or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any announcement of its Affiliates or representatives), concerning any proposal or offer for (including, without limitation, any proposal or offer to the stockholders of the Company) with respect to a merger, reorganization, acquisition, tender offer, share exchange, consolidation, business combination, recapitalization, asset acquisition or other business combination liquidation, dissolution or similar transaction involving the Company involving, or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% purchase of, fifteen percent (15%) or more of the outstanding Common Stock net revenue, net income or voting power in, assets or 20% fifteen percent (15%) or more of the fair market value any class of the assets equity securities of, the Company or its Subsidiaries (any Company Subsidiary other than the Transactions (such proposal or offer being hereinafter referred to as an ''“Alternative Proposal"”), (ii) directly or otherwise cooperate indirectly engage in any way withnegotiations concerning, provide any confidential information or participate in, facilitate or actively encourage any effort or attempt bydata to, any person or group (other than Parent, relating to any of its Affiliates or representatives) to do or seek any of the foregoing, except proposal that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Actconstitutes, or would reasonably be expected to lead to, an Alternative Proposal and (iiiii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any Alternative Proposal, or enter into any letter of intent, agreement in principle or definitive agreement understanding with respect any Person other than Buyer or Merger Sub with the intent to effect any Alternative Proposal. Upon execution of Proposal (other than the confidentiality and standstill agreements contemplated by Section 6.1(b)).
(b) Notwithstanding anything in this Agreement, Agreement to the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingcontrary, prior to the time of acceptance of Shares for payment pursuant Acceptance Date and to the Offer, extent the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response to a Superior receives an Alternative Proposal that its Board of Directors determines, after consultation with its legal and financial advisors, is submitted by such entity or group, and may, subject reasonably likely to providing prior written notice lead to Parent of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) herein), the Company and its Representatives may engage in any negotiations concerning, provide any confidential information or data to or otherwise have any discussions with, any person relating to such entity Alternative Proposal, or group has on an unsolicited basis submitted a otherwise facilitate any effort or attempt to make or implement such Alternative Proposal. For purposes of this Agreement, the term “Superior Proposal” means any bona fide written proposal to the Company Board to acquire more than Alternative Proposal involving a majority of the Shares then outstanding on a fully diluted basis net revenue, net income or all or substantially all of the assets of the Company, which Company and its Subsidiaries or a majority of the Company Common Stock or the voting power of the Company that the Company’s Board of Directors determines in good faith, based on after consultation with the written advice Company Financial Advisor or another financial advisor of the Company's financial advisorsnationally recognized reputation and outside legal counsel, to be (i) is more favorable from a financial point of view to the Company' s ’s current stockholders (in their capacities as stockholders) than the Offer transactions contemplated by this Agreement, (ii) is made by a third party that has the financial capability to consummate such Alternative Proposal and (iii) is reasonably capable of being consummated, in each case, taking into account all of the relevant facts and circumstances, including, without limitation, conditions to consummation, required regulatory approvals, and the Merger, and which is neither subject fees payable to Buyer in accordance with Section 8.5 of this Agreement. In addition to the receipt of any necessary financing nor otherwise on terms less favorable than the terms hereof and which in the opinion obligations of the Company Boardset forth in this Section 6.1, based on the Company shall promptly give oral and written advice notice to Buyer of each inquiry, offer, proposal or request for nonpublic information received by the Company with respect to any Alternative Proposal and each request for a waiver Table of Contents or release under any standstill or similar agreement, and, prior to entering into any negotiation, providing any information or having discussions regarding an Alternative Proposal, the Company shall give Buyer written notice of the Company's financial advisorsidentity of the Person making the Alternative Proposal and a copy of the Alternative Proposal (if in written or electronic form) or a written summary of the material terms thereof (if communicated to the Company and its Representatives orally). In addition, the Company shall inform Buyer promptly of all material developments with respect to the status and the terms of any substantive discussions or negotiations with respect to an Alternative Proposal and shall provide Buyer copies of such written proposals and any material amendments or revisions thereto or material correspondence related thereto. Prior to furnishing nonpublic information to, or entering into discussions or negotiations with, any other persons or entities, the Company shall enter into a customary confidentiality agreement with such person or entity (if the Company has not already entered into a customary confidentiality agreement with such person or group has the financial capacity to consummate (a "Superior Proposal"entity in connection with its exploration of strategic alternatives), it being understood that such confidentiality agreement (Bx) shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company Board believes in good faith, based on the advice of from satisfying its outside legal counsel, that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, hereunder and (Cy) the Company furnishes such information to such entity or group pursuant to an appropriate confidentiality agreement on terms shall be no less favorable to the Company than the SCA Confidentiality Agreement, and (D) neither the Company nor shall provide Buyer with a copy of such nonpublic information delivered to such person promptly following its delivery to the requesting party or, to the extent that such nonpublic information has been previously furnished by the Company to Buyer, advise Buyer of the nature of such nonpublic information delivered to such person promptly following its delivery to the requesting party.
(c) Nothing contained herein, shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to its stockholders if in the good faith judgment of its Board of Directors, after consultation with outside legal counsel, failure so to disclose would be inconsistent with its obligations under applicable law.
(d) The Company Subsidiary will immediately cease and cause to be terminated any existing activities, discussions or Affiliate, nor negotiations with any other person (other than Buyer) that have been conducted heretofore with respect to a potential Alternative Proposal. The Company agrees to inform the following persons of their respective the obligations undertaken in this Section 6.1: its and its Subsidiaries’ officers, directors, key employees, representatives or agents, shall have violated financial advisors and any other persons who would reasonably be expected to take the types of the restrictions set forth in actions prohibited by this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent6.1.
(b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day period.
Appears in 1 contract
Alternative Proposals. (a) Neither the Company nor any Company Subsidiary or Affiliate shall (and neither the Company nor any Company Subsidiary or Affiliate shall authorize or permit any of their respective officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, to), directly or indirectly, solicit, initiate or encourage any inquiry, proposal or offer, or participate in or initiate discussions or negotiations with, or provide any information to, any person or group (other than Parent, any of its Affiliates or representatives), concerning any proposal or offer for a merger, share exchange, consolidation, recapitalization, asset acquisition or other business combination or similar transaction involving the Company or any Company Subsidiary or any proposal or offer to acquire an equity interest representing 20% or more of the outstanding Common Stock or voting power in, or 20% or more of the fair market value of the assets of, the Company or any Company Subsidiary other than the Transactions (an ''"Alternative Proposal"), or otherwise cooperate in any way with, or participate in, facilitate or actively encourage any effort or attempt by, any person or group (other than Parent, any of its Affiliates or representatives) to do or seek any of the foregoing, except that nothing contained in this Section 5.2 or any other provision hereof shall prior to the time of acceptance of Shares for payment pursuant to the Offer prohibit the Company or the Company Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after receiving advice from outside counsel, is required under Applicable Law, provided that the Company may not, except as permitted by Section 5.2(b) hereof, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any Alternative Proposal, or enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, the Company may, subject to providing prior written notice to Parent of its decision to take such action, furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group in response to a Superior Proposal that is submitted by such entity or group, and may, subject to providing prior written notice to Parent of its decision to take such action, negotiate and participate in discussions and negotiations with such entity or group concerning a Superior Proposal (as defined below) if (A) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company Board to acquire more than a majority of the Shares then outstanding on a fully diluted basis or all or substantially all of the assets of the Company, which the Company Board determines in good faith, based on the written advice of the Company's financial advisors, to be more favorable from a financial point of view to the Company' s 's stockholders than the Offer and the Merger, and which is neither subject to the receipt of any necessary financing nor otherwise on terms less favorable than the terms hereof and which in the opinion of the Company Board, based on the written advice of the Company's financial advisors, such entity or group has the financial capacity to consummate (a "Superior Proposal"), (B) the Company Board believes in good faith, based on the advice of its outside legal counsel, that such action is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company furnishes such information to 32 38 such entity or group pursuant to an appropriate confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement, and (D) neither the Company nor any Company Subsidiary or Affiliate, nor any of their respective officers, directors, employees, representatives or agents, shall have violated any of the restrictions set forth in this Section 5.2. The Company will immediately notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company, and the Company will immediately communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent.
(b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by the Company Board or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Alternative Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle or definitive agreement with respect to any Alternative Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Company Board may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger if (A) the Company has received a Superior Proposal which is then pending and which the Company Board has determined to recommend to the Company's stockholders, (B) the Company Board concludes, in good faith, based on the advice of its outside legal counsel, that in light of such Superior Proposal, the withdrawal or modification of such approval or recommendation is reasonably necessary in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under Applicable Law, (C) the Company notifies Parent at least five business days prior to taking any action with respect to such Superior Proposal or the withdrawal or modification of its approval or recommendation, specifying the material terms and conditions of such Superior Proposal, and identifying the person making such Superior Proposal; and (D) the Company gives Parent at least five business days after the Company gives notice to Parent pursuant to clause (C) to match or better such Superior Proposal and Parent fails to or decides not to do so within such five-day period.
Appears in 1 contract