Competing Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the day that is thirty (30) days following the date of this Agreement (the “Solicitation Period End Date”), the Company and its Subsidiaries and their respective Representatives shall have the right (acting under the direction of the Company Board or any committee thereof, including the Special Committee) to, directly or indirectly, (i) solicit, initiate, facilitate and encourage any Competing Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more confidentiality agreements having terms and provisions that are substantially similar to those contained in the Confidentiality Agreement, provided, that, for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an “Acceptable Confidentiality Agreement”); provided, however, that, subject to the last sentence of this Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to any Third Party and not previously provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room); and (ii) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Competing Proposal or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Competing Proposal. Notwithstanding the foregoing, the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of such information in the context of considering Competing Proposals prior to the date of this Agreement. (b) Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), from and after the Solicitation Period End Date, neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives to (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Parties that may be ongoing with respect to a Competing Proposal, and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.01, directly or indirectly, (x) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (y) engage in any discussions or negotiations with, or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the books or records of the Company or its Subsidiaries to, any Third Party for the purpose of knowingly facilitating or knowingly encouraging a Competing Proposal, or (z) approve, endorse or recommend, or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement in a form customary for acquisition transactions) with respect to, any Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing of the number and identity (to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. Notwithstanding the commencement of the obligations of the Company under this Section 4.02(b), from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in clauses (x) through (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised proposal submitted by such Exempted Person on or before the Cut-Off Date, so long as a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine, in good faith, after consultation with its financial and legal advisors, that such amended or revised proposal is bona fide and constitutes, or is reasonably likely to lead to, a Superior Proposal. Notwithstanding anything contained in this Section 4.02(b) to the contrary, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at such time as (x) the Competing Proposal made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each case, to the right of the Exempted Person to amend, change or otherwise modify its Competing Proposal, including to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, however, that the Company shall only be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and under applicable Law, and if not permissible, the Company shall provide Parent with a general description of the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. (c) Notwithstanding anything to the contrary contained in Section 4.02(b) (other than with respect to an Exempted Person in accordance with Section 4.02(b) during the period after the Solicitation Period End Date but prior to the Cut-Off Date), at any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvals, the Company or the Company Board (or any committee thereof, including the Special Committee), directly or indirectly through its Representatives, may (i) furnish nonpublic information to any Third Party making a Competing Proposal (provided, however, that prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement; and provided, further, that, subject to the last sentence of Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to such Third Party and not already provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)), and (ii) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal if: (x) such Third Party has submitted a Competing Proposal and which a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal; (y) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with legal counsel, that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law. Prior to taking any of the actions referred to in this Section 4.02(c), the Company shall notify H&H Group and Sub orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 4.02(c). (d) Except as expressly permitted by this Section 4.02(d), neither the Company Board nor any committee thereof shall: (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, H&H Acquisition Sub, H&H Group or Sub, the approval or recommendation by the Company Board or any such committee, including the Special Committee, of this Agreement or the transactions contemplated hereby; (ii) approve or recommend, or publicly propose to approve or recommend, any Competing Proposal made or received after the date hereof (any of the actions described in clauses (i) and (ii) of this Section 4.02(d), an “Adverse Recommendation Change”); or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Stockholder Approvals, a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreement, and/or effect an Adverse Recommendation Change described in clause (i) of such definition, with respect to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 (A) if the Company Board (or any committee thereof, including the Special Committee) has received a Competing Proposal that, in the good faith determination of a majority of the members of the Company Board (or any committee thereof, including the Special Committee), after consultation with its legal and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or (y) to effect an Adverse Recommendation Change described in clause (i) of such definition, if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable to the Company Board prior to the date hereof, or if known or reasonably foreseeable to the Company Board prior to the date of this Agreement, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreement, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. (e) The Company shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal or to terminate this Agreement as permitted under Section 4.02(d) with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(e) in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), (ii) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent, H&H Acquisition Sub, H&H Group and Sub that the Company intends to take such action and describing the material terms and conditions of the Superior Proposal that is the basis of such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of the Company and under applicable Law, the identity of the Third Party; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity), (iii) during the four (4) business day period following Parent’s, H&H Acquisition Sub’s, H&H Group’s and Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall use reasonable best efforts to cause its Representatives to, negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub in good faith (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and (iv) following the end of the four (4) business day period, a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall have determined in good faith, taking into account any changes to this Agreement timely proposed in writing by Parent, H&H Acquisition Sub, H&H Group and Sub in response to the Notice of Superior Proposal or otherwise, and after consultation with its legal and financial advisors, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 4.02(e); provided, however, that references to the four (4) business day period above shall be deemed to be references to a three (3) business day period). (f) The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) with respect to an Intervening Event unless (i) the Company has provided a written notice (a “Notice of Intervening Event”)
Appears in 1 contract
Competing Proposals. (a) Notwithstanding anything to the contrary contained in this AgreementBuyer acknowledges and agrees that, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) a.m. Pacific Time on the day that is thirty (30) days following the date of this Agreement June 1, 2009 (the “Solicitation Period End DatePeriod”), Seller, each of the Company and its Subsidiaries Acquired Companies, and their respective Representatives shall have officers, directors, managers, employees, investment bankers, attorneys and other advisors and representatives (collectively, the right (acting under the direction of the Company Board or any committee thereof, including the Special Committee“Seller Representatives”) to, directly or indirectly, are permitted to (i) directly or indirectly solicit, initiateinitiate or encourage the submission of competing proposals (collectively, “Alternate Solicitation Activities”) from any other Person to acquire the Interest or otherwise acquire all of the Acquired Companies (an “Alternate Transaction”) and (ii) directly or indirectly participate in discussions or negotiations regarding, and furnish to any Person with respect thereto, and take any other action to facilitate and encourage any Competing Proposalsinquiries or the making of any proposal that constitutes, including by way of providing access or may reasonably be expected to non-public information pursuant to (but only pursuant lead to) one or more confidentiality agreements having terms and provisions that are substantially similar to those contained in the Confidentiality Agreement, provided, that, for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an Alternate Transaction (collectively, “Acceptable Confidentiality AgreementAlternate Discussions”); provided, however, thatthat (A) Seller shall not, subject nor shall it authorize or permit any other Seller Representative to, provide or make available to any other Person any non-public information (other than any immaterial non-public information) with respect to the last sentence of this Section 4.02(a)Acquired Companies without first entering into a customary confidentiality agreement with such Person that is not less restrictive than any confidentiality agreement entered into between or among Seller and/or AMG, on the one hand, and Buyer, on the other hand, at which ▇▇▇▇ ▇▇▇▇▇▇ shall notify Buyer that it has entered into a confidentiality agreement with such Person, and (B) Seller shall promptly provide to Buyer any material non-public information concerning the any Acquired Company that is provided or made available to such Person or its Subsidiaries provided to any Third Party and representatives which was not previously provided or made available to H&H Group shall be provided to H&H Group Buyer. Unless Seller and/or AMG enters into one or Sub as promptly as reasonably practicable after it is provided to such Third Party more written term sheets with Persons other than Buyer (which requirement may be satisfied by posting such information to the Electronic Data Room); and (iieach, a “Competing Offeror”) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Competing Proposal or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Competing Proposal. Notwithstanding the foregoing, the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of such information in the context of considering Competing Proposals prior to the date expiration of this Agreement.
the Solicitation Period for an Alternate Transaction that does not have a “financing out” condition to the Competing Offeror’s obligation to consummate the Alternate Transaction (b) Except as expressly permitted by this Section 4.02(b) or Section 4.02(ceach, a “Competing Offer”), then from and after the Solicitation Period End Date, neither the Company nor any end of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives to (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Parties that may be ongoing with respect to a Competing Proposal, and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date until and continuing through the earlier date of the Effective Time or the date, termination (if any, on which ) of this Agreement is terminated pursuant to Section 7.016.3 above, Seller and the Seller Representatives shall be prohibited from engaging in any manner, directly or indirectly, (x) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (y) engage in any discussions Alternate Solicitation Activities or negotiations with, or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the books or records of the Company or its Subsidiaries to, any Third Party for the purpose of knowingly facilitating or knowingly encouraging a Competing Proposal, or (z) approve, endorse or recommend, or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement in a form customary for acquisition transactions) with respect to, any Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing of the number and identity (to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. Notwithstanding the commencement of the obligations of the Company under this Section 4.02(b), from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in clauses (x) through (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised proposal submitted by such Exempted Person on or before the Cut-Off Date, so long as a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine, in good faith, after consultation with its financial and legal advisors, that such amended or revised proposal is bona fide and constitutes, or is reasonably likely to lead to, a Superior Proposal. Notwithstanding anything contained in this Section 4.02(b) to the contrary, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at such time as (x) the Competing Proposal made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each case, to the right of the Exempted Person to amend, change or otherwise modify its Competing Proposal, including to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, however, that the Company shall only be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and under applicable Law, and if not permissible, the Company shall provide Parent with a general description of the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof.
(c) Notwithstanding anything to the contrary contained in Section 4.02(b) (other than with respect to an Exempted Person in accordance with Section 4.02(b) during the period after the Solicitation Period End Date but prior to the Cut-Off Date), at any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvals, the Company or the Company Board (or any committee thereof, including the Special Committee), directly or indirectly through its Representatives, may (i) furnish nonpublic information to any Third Party making a Competing Proposal (provided, however, that prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement; and provided, further, that, subject to the last sentence of Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to such Third Party and not already provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)), and (ii) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal if: (x) such Third Party has submitted a Competing Proposal and which a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal; (y) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with legal counsel, that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law. Prior to taking any of the actions referred to in this Section 4.02(c), the Company shall notify H&H Group and Sub orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 4.02(c).
(d) Except as expressly permitted by this Section 4.02(d), neither the Company Board nor any committee thereof shall: (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, H&H Acquisition Sub, H&H Group or Sub, the approval or recommendation by the Company Board or any such committee, including the Special Committee, of this Agreement or the transactions contemplated hereby; (ii) approve or recommend, or publicly propose to approve or recommend, any Competing Proposal made or received after the date hereof (any of the actions described in clauses (i) and (ii) of this Section 4.02(d), an “Adverse Recommendation Change”); or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Stockholder Approvals, a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreement, and/or effect an Adverse Recommendation Change described in clause (i) of such definition, with respect to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 (A) if the Company Board (or any committee thereof, including the Special Committee) has received a Competing Proposal that, in the good faith determination of a majority of the members of the Company Board (or any committee thereof, including the Special Committee), after consultation with its legal and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or (y) to effect an Adverse Recommendation Change described in clause (i) of such definition, if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable to the Company Board prior to the date hereof, or if known or reasonably foreseeable to the Company Board prior to the date of this Agreement, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreement, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(e) The Company shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal or to terminate this Agreement as permitted under Section 4.02(d) with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(e) in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), (ii) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent, H&H Acquisition Sub, H&H Group and Sub that the Company intends to take such action and describing the material terms and conditions of the Superior Proposal that is the basis of such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of the Company and under applicable Law, the identity of the Third Party; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity), (iii) during the four (4) business day period following Parent’s, H&H Acquisition Sub’s, H&H Group’s and Sub’s receipt of the Notice of Superior Proposal, the Company shall, Alternate Discussions and shall use reasonable best efforts to cause its Representatives to, negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub in good faith (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and (iv) following the end of the four (4) business day period, a majority of the members of the Company Board (immediately terminate any ongoing Alternate Solicitation Activities or any committee thereof, including the Special Committee) shall have determined in good faith, taking into account any changes to this Agreement timely proposed in writing by Parent, H&H Acquisition Sub, H&H Group and Sub in response to the Notice of Superior Proposal or otherwise, and after consultation with its legal and financial advisors, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 4.02(e); provided, however, that references to the four (4) business day period above shall be deemed to be references to a three (3) business day period)Alternate Discussions.
(f) The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) with respect to an Intervening Event unless (i) the Company has provided a written notice (a “Notice of Intervening Event”)
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ambassadors International Inc)
Competing Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the day that is thirty (30) days following the date of this Agreement (the “Solicitation Period End Date”), the Company and its Subsidiaries and their respective Representatives shall have the right (acting under the direction of the Company Board or any committee thereof, including the Special Committee) to, directly or indirectly, (i) solicit, initiate, facilitate and encourage any Competing Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more confidentiality agreements having terms and provisions that are substantially similar to those contained in the Confidentiality Agreement, provided, that, for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an “Acceptable Confidentiality Agreement”); provided, however, that, subject to the last sentence of this Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to any Third Party and not previously provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room); and (ii) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Competing Proposal or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Competing Proposal. Notwithstanding the foregoing, the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of such information in the context of considering Competing Proposals prior to the date of this Agreement.
(b) Except as otherwise expressly permitted by this Section 4.02(b) or Section 4.02(c)6.02, from and after the Solicitation Period End Date, neither the Company nor any shall, and shall cause each of its Subsidiaries shalland its and their respective officers, directors and the Company employees and shall use its reasonable best efforts to cause each of its Representatives to their other Representatives:
(i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Parties that may be ongoing with respect to a Competing Proposal, and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date execution of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant in accordance with Article IX, immediately cease and cause to Section 7.01be terminated any existing discussions, solicitation, encouragement, discussion or negotiation with any Third Party with respect to an Acquisition Proposal;
(ii) from and after the execution of this Agreement until the Effective Time or the date, if any, on which this Agreement is validly terminated in accordance with Article IX, not directly or indirectly, indirectly (xA) solicit, initiate, knowingly encourage seek or knowingly facilitate or encourage any inquiry, discussion, offer or request relating to, or that constitutes, or could would reasonably be expected to lead to, a Competing an Acquisition Proposal, (yB) engage enter into continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to the Company or any of its Subsidiaries Acquired Companies to, or afford access to the properties, books or records or employees of the Company or its Subsidiaries Acquired Companies to, any Third Party for with respect to or that could reasonably be expected to lead to any Acquisition Proposal; provided, that notwithstanding the purpose foregoing, the Company shall be permitted to grant a waiver of knowingly facilitating or knowingly encouraging a Competing terminate any "standstill" or similar agreement or obligation of any Third Party with respect to the Acquired Companies to allow such Third Party to submit an Acquisition Proposal, or (zC) other than a confidentiality agreement pursuant to Section 6.02(b)(iii), approve, endorse endorse, recommend or recommendenter into, or publicly propose to approve, endorse, recommend or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar other definitive agreement (other than a confidentiality agreement in a form customary for acquisition transactions) with respect to, any Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing of the number and identity (to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. Notwithstanding the commencement of the obligations of the Company under this Section 4.02(b), from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in clauses (x) through (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended Acquisition Proposal (an "Alternative Acquisition Agreement") or revised proposal submitted by such Exempted Person on (D) agree, propose or before the Cut-Off Dateresolve to take, so long as a majority or take, any of the members actions prohibited by the foregoing clause (A) through clause (C); and
(iii) within twenty-four (24) hours of the entry into this Agreement, terminate access of any Third Party to any data room (virtual or actual) containing any confidential and non-public information relating to the Acquired Companies that was established in connection with the potential sale of the Acquired Companies and the consideration by the Company of any strategic alternatives or options and promptly deliver a written notice to each such Third Party requesting the prompt return or destruction of all confidential and non-public information previously furnished to such Person by or on behalf of any Acquired Company or any of its Representatives. Without limiting the foregoing, it is agreed that any breach of the restrictions or obligations set forth in Section 6.02 by any Subsidiary of the Company Board (or any committee thereofRepresentatives of the Company of any of its Subsidiaries, including shall be a breach of Section 6.02 by the Special CommitteeCompany.
(b) determineNotwithstanding anything to the contrary contained in Section 6.02(a), if at any time prior to adoption of this Agreement by the Required Company Stockholder Approval (i) the Company has received a bona fide unsolicited written Acquisition Proposal after the date of this Agreement from a Third Party and that did not result from a breach of this Section 6.02 (other than any breach that is both immaterial and unintentional), (ii) the Company Board determines in good faith, after consultation with its financial and outside legal advisors, that (y) such amended or revised proposal is bona fide and Acquisition Proposal constitutes, or is could reasonably likely be expected to lead to, to or result in a Superior Proposal. Notwithstanding anything contained Proposal and (z) its failure to take such actions would be inconsistent with the directors' fiduciary duties to the Company's stockholders under Applicable Law, and (iii) the Company negotiates and receives from such Third Party an executed confidentiality agreement with terms that are no less favorable in the aggregate to the Company than the Confidentiality Agreement (and which shall not prohibit the Company from complying with the terms of this Section 4.02(b6.02, it being understood and agreed that such confidentiality agreement need not contain a "standstill" or similar provision that prohibits the counterparty thereto or any of its Affiliates or Representatives from making an Acquisition Proposal), then the Company and its Representatives may, subject to this Section 6.02, (A) furnish non-public information, and afford access to the contrarybooks or records or officers of the Acquired Companies, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at to such time as Third Party and its Affiliates and Representatives and (xB) engage in discussions and negotiations with such Third Party and its Affiliates and representatives with respect to the Competing Proposal Acquisition Proposal; provided, that any such non-public information that is in writing concerning the Acquired Companies made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails available to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each caseany Third Party shall, to the right of the Exempted Person extent not previously made available to amendParent, change or otherwise modify its Competing Proposal, including be made available to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, however, that the Company shall only be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and under applicable Law, and if not permissible, the Company shall provide Parent with a general description of the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to or substantially concurrent with the date hereof.
(c) time it is made available to such Third Party. Notwithstanding anything to the contrary contained set forth in this Section 4.02(b) (other than with respect to an Exempted Person 6.02 or elsewhere in accordance with Section 4.02(b) during the period after the Solicitation Period End Date but prior to the Cut-Off Date), at any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvalsthis Agreement, the Company or Company, its Subsidiaries and its Representatives may, in any event (without the Company Board having to make the determination in clause (or any committee thereof, including ii) of the Special Committeepreceding sentence), directly or indirectly through its Representatives, may contact any such Third Party to (i) furnish nonpublic information seek to clarify and understand the terms and conditions of any Third Party making a Competing Proposal (provided, however, that prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement; and provided, further, that, subject to the last sentence of Section 4.02(a), inquiry or proposal made by any material non-public information concerning the Company or its Subsidiaries provided to such Third Party and not already provided solely to determine whether such inquiry or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)), and (ii) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal if: (x) such Third Party has submitted a Competing Proposal and which a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal; Proposal and (yii) inform any such Competing Proposal did not result from a material breach of either Third Party of the first two (2) sentences provisions of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with legal counsel, that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law. Prior to taking any of the actions referred to in this Section 4.02(c), the Company shall notify H&H Group and Sub orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 4.02(c)6.02.
(dc) Except as expressly permitted by this Section 4.02(d6.02(c), Section 6.02(d) or Section 6.02(e), until the earlier of the adoption of this Agreement by the Required Company Stockholder Approval or the valid termination of this Agreement in accordance with Article IX, neither the Company Board nor any committee thereof shall: shall or shall propose publicly to (i) withdraw withhold, withdraw, qualify, change, amend or modify, or publicly propose to withdraw or modify, in each case in a manner adverse to Parent, H&H Acquisition Sub, H&H Group Parent or Merger Sub, the approval or recommendation by the Company Board or any such committee, including the Special Committee, of this Agreement or the transactions contemplated herebyRecommendation; (ii) approve fail to include the Company Board Recommendation in the Proxy Statement; (iii) fail to reaffirm the Company Board Recommendation within four (4) Business Days of receipt of a written request from Parent to do so (it being agreed that neither the delivery of a notice by the Company described in Section 6.02(d) nor any public announcement thereof shall constitute an Adverse Recommendation Change); (iv) after receipt of any Company Acquisition Proposal, fail to recommend against any Company Acquisition Proposal within four (4) Business Days of receipt of a written request from Parent to do so (it being agreed that neither the delivery of a notice by the Company described in Section 6.02(d) nor any public announcement thereof shall constitute an Adverse Recommendation Change); (v) fail to recommend against any Acquisition Proposal that is a tender or exchange offer by a Third Party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company's stockholders); (vi) approve, adopt, declare advisable or recommend, or publicly propose to approve approve, adopt, declare advisable or recommend, any Competing Acquisition Proposal made or received after the date hereof (any of the actions described in clauses clause (i) and through clause (iivi) of this Section 4.02(d6.02(c), an “"Adverse Recommendation Change”"); or (iiivii) adopt or approve, or cause or permit the Company to enter into or otherwise resolve or agree to any Alternative Acquisition AgreementAgreement (other than a confidentiality agreement pursuant to Section 6.02(b)(iii). Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to the Stockholder Approvals, a majority receipt of the members of Required Company Stockholder Approval, (A) the Company Board (may, subject to first complying with Section 6.02(d) or any committee thereofSection 6.02(e), including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreementas applicable, and/or effect make an Adverse Recommendation Change described in clause (i) of such definition, with respect in response to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 an Intervening Event or (Aii) if the Company Board (or any committee thereof, including receives an unsolicited bona fide Acquisition Proposal after the Special Committee) has received a Competing Proposal that, in the good faith determination date of a majority of the members of the Company Board (or any committee thereof, including the Special Committee), after consultation with its legal and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal this Agreement that did not result from a material breach of either this Section 6.02 (other than any breach that is both immaterial and unintentional) and, in the case of the first two each of clause (2i) sentences of Section 4.02(band clause (ii), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine determines in good faith, after consultation with its financial and outside legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ ' fiduciary duties to the Company's stockholders under applicable Law, or Applicable Law and (yB) to effect an Adverse Recommendation Change described in clause (i) of such definition, if a majority of the members of event the Company Board receives an unsolicited bona fide Acquisition Proposal after the date of this Agreement that did not result from a breach of this Section 6.02 (or other than any committee thereof, including breach that is both immaterial and unintentional) and the Special Committee) determine Company Board determines in good faith, after consultation with its financial and outside legal advisors, thatthat such Acquisition Proposal is a Superior Proposal, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable to the Company Board prior shall be permitted, to the date hereofvalidly terminate this Agreement pursuant to Section 9.01(h) and enter into a definitive Alternative Acquisition Agreement in connection with such Superior Proposal, or if known or reasonably foreseeable to and only if the Company Board prior to the date of this Agreementdetermines in good faith, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreementafter consultation with its financial and outside legal advisors, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent with the directors’ ' fiduciary duties to the Company's stockholders under applicable Applicable Law, subject to the Company first complying with Section 6.02(d) and substantially concurrently with entering into any such definitive agreement (1) the Company validly terminates this Agreement in accordance with the provisions of Section 9.01(h) and (2) the Company pays the Company Termination Fee in accordance with Section 9.03(b) .
(ed) The Company Board shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal or to validly terminate this Agreement as permitted under pursuant to Section 4.02(d9.01(h) with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(eprovided, at least three (3) Business Days in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b)advance, (ii) the Company has provided a written notice (a “"Notice of Superior Proposal”Adverse Recommendation Change") to Parent, H&H Acquisition Sub, H&H Group and Sub Parent that the Company intends to take such action (it being understood that the delivery of a Notice of Adverse Recommendation Change and describing any amendment or update thereto and the determination to so deliver such notice, amendment or update will not, by itself, constitute an Adverse Recommendation Change), which notice includes, written notice of the material terms and conditions of the Superior Proposal that is the basis of such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of which enabled the Company and under applicable Law, Board to make the identity of determination that the Third PartyAcquisition Proposal is a Superior Proposal; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity), (iiiii) during the four three (43) business day Business Day period following the time of Parent’s, H&H Acquisition Sub’s, H&H Group’s and Sub’s 's receipt of the Notice of Superior ProposalAdverse Recommendation Change, the Company shall, and shall use reasonable best efforts to cause its Representatives to, negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub Parent in good faith (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement Agreement, the Commitment Letters and the Transactions so that such Superior Proposal ceases to constitute a Superior ProposalProposal such that the failure to take such action would no longer be inconsistent with the director's fiduciary duties to the Company's stockholders under Applicable Law; and (iviii) following the end of the four three (43) business day periodBusiness Day period described in the preceding clause (ii), a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall have determined in good faith, taking into account after consultation with its financial and outside legal advisors, after considering in good faith any changes to this Agreement timely proposed in writing Agreement, the Commitment Letters and the Transactions offered by Parent, H&H Acquisition Sub, H&H Group and Sub Parent in response to the Notice of Superior Proposal Adverse Recommendation Change or otherwise, and after consultation with its legal and financial advisors, that the Superior Proposal giving rise to the Notice of Superior Proposal Adverse Recommendation Change continues to constitute a Superior ProposalProposal and that failure to take such action would be inconsistent with the director's fiduciary duties to the Company's stockholders under Applicable Law. Any In the event of any amendment or modification to the amount or form of consideration payable in connection with the Superior Proposal or any material amendment or modification to the financial terms or any other material amendment term of such the Superior Proposal shall require a new Notice of Superior Proposal and Proposal, the Company shall be required to issue a new Notice of Adverse Recommendation Change or otherwise comply again with the requirements of this Section 4.02(e6.02(d); provided, however, that for purposes of this sentence, references to the four three (43) business day Business Day period above shall be deemed to be references to a three two (32) business day period)Business Day period from the time of Parent's receipt of such new Notice of Adverse Recommendation Change.
(fe) The Other than in connection with effecting an Adverse Recommendation Change with respect to a Superior Proposal or causing the Company to validly terminate this Agreement pursuant to Section 9.01(h) and enter into an Alternative Acquisition Agreement (which, in each case, shall be subject to Section 6.02(d) and shall not be entitled subject to this Section 6.02(e)), the Company Board may effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) with respect in response to an Intervening Event unless Event, only if, prior to such action (i) the Company has provided provided, at least three (3) Business Days in advance, a Notice of Adverse Recommendation Change to Parent that the Company intends to take such action (it being understood that the delivery of a Notice of Adverse Recommendation Change and any amendment or update thereto and the determination to so deliver such notice, amendment or update will not, by itself, constitute an Adverse Recommendation Change), which notice includes, a reasonably detailed summary of the facts, events and/or circumstances of and relating to the Intervening Event and the reasons for such Adverse Recommendation Change; (ii) during the three (3) Business Day period following the time of Parent's receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall cause its Representatives to negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, the Commitment Letters and the Transactions such that the failure to take such action would no longer be inconsistent with the director's fiduciary duties to the Company's stockholders under Applicable Law; and (iii) following the end of the three (3) Business Day period described in the preceding clause (ii), the Company Board shall have determined in good faith, after consultation with its financial and outside legal advisors, after considering in good faith any changes to this Agreement, the Commitment Letters and the Transactions offered by Parent in response to the Notice of Adverse Recommendation Change or otherwise, that the Intervening Event giving rise to the Notice of Adverse Recommendation Change continues to constitute an Intervening Event and that failure to take such action would be inconsistent with the director's fiduciary duties to the Company's stockholders under Applicable Law.
(f) From and after the execution of this Agreement until the Effective Time or the date, if any, on which this Agreement is validly terminated in accordance with Article IX, (i) as promptly as reasonably practicable (and in any event within one (1) Business Day) after receipt by the Company or any of its Representatives of any Acquisition Proposal from any Third Party or any request for non-public information or offer or inquiry that could reasonably be expected to lead to an Acquisition Proposal from any Third Party, the Company shall provide Parent with written notice of the identity of such Third Party and the material terms and conditions of such Acquisition Proposal, request, offer or inquiry and, in the case of written materials (a “Notice including any financing commitments received), provide Parent copies of Intervening Event”all such materials, (ii) as promptly as reasonably practicable (and in any event within one (1) Business Day) make available to Parent copies of all materials provided by the Company to such Third Party but not previously made available to Parent and (iii) the Company shall provide Parent with reasonably prompt written noti
Appears in 1 contract
Competing Proposals. (a) Notwithstanding anything Subject to the contrary contained in this Agreement, during the period beginning on the date remainder of this Agreement and continuing until 11:59 p.m. (New York City time) on Section 6.9, none of the day that is thirty (30) days following the date Seller Parties or any of this Agreement (the “Solicitation Period End Date”), the Company and its Subsidiaries and their respective Representatives subsidiaries shall, nor shall have the right (acting under the direction of the Company Board or any committee thereof, including the Special Committee) to, directly or indirectly) any Seller Party authorize any of its or its subsidiaries’ officers, directors, Representatives or other intermediaries or subsidiaries to: (i) solicit, initiate, initiate or knowingly facilitate (it being understood and encourage any Competing Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more confidentiality agreements having terms and provisions agreed that ministerial acts that are substantially similar not otherwise prohibited by this Section 6.9 (such as answering unsolicited phone calls) shall not be deemed to those contained in the Confidentiality Agreement, provided, that, “facilitate” for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an “Acceptable Confidentiality Agreement”); provided, however, that, subject to the last sentence purposes of this Section 4.02(a)6.9) the submission of inquiries, proposals or offers from any material non-public information concerning the Company or Person (other than Purchaser and its Subsidiaries provided affiliates) relating to any Third Party and not previously provided Competing Proposal, or made available agree to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)recommend any Competing Proposal; and (ii) enter intointo any agreement (x) to consummate any Competing Proposal, continue (y) to approve any Competing Proposal or otherwise (z) requiring it to abandon, terminate or fail to consummate the Transactions; (iii) enter into or participate in any discussions or negotiations in connection with any Competing Proposal or inquiry with respect to any Competing Proposal Proposal, or otherwise cooperate furnish any non-public information with respect to the Servicing Rights in connection with any Competing Proposal; or assist (iv) agree to resolve to take, or participate in take, any of the actions prohibited by clause (i), (ii) or facilitate (iii) of this sentence. Each of Seller and Seller Parent shall immediately cease, and cause its respective Representatives and other intermediaries to immediately cease, any such and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Competing Proposal and shall immediately terminate access by all such parties and their Representatives to any online data room or portions thereof to the extent pertaining to the Servicing Rights. For purposes of this Section 6.9, the term “Person” includes any effort or attempt to make any Competing Proposal“group” as defined in Section 13(d) of the Exchange Act. Notwithstanding the foregoing, Seller and Seller Parent may, following the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with receipt of a Competing Proposal, contact the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of Person that has made such information in the context of considering Competing Proposals prior to the date of this Agreement.
(b) Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), from and after the Solicitation Period End Date, neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives Proposal to (i) cease clarify and cause understand the terms and conditions thereof solely to be terminated any existing solicitation, encouragement, discussion facilitate the Seller Parent Board’s determination of whether such Competing Proposal constitutes or negotiation with any Third Parties that may be ongoing with respect to a Competing Proposal, and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.01, directly or indirectly, (x) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could would reasonably be expected to lead to, a Superior Proposal, and (ii) inform such Person of the existence of the provisions of this Section 6.9. Notwithstanding the foregoing or any other provision in this Agreement, nothing in this Agreement shall be deemed to prohibit or otherwise limit the ability of Seller Parent, its subsidiaries or their Representatives or other intermediaries from taking any action prohibited by this Section 6.9(a) or taking any other action with respect to any transaction that does not constitute or relate to a Competing Proposal.
(b) Notwithstanding anything to the contrary in this Section 6.9, Seller and Seller Parent may, directly or indirectly, prior to the receipt of the Stockholder Approval, (yi) engage in negotiations or discussions with any discussions Person (and its Representatives) that has made an unsolicited written Competing Proposal not resulting from or negotiations witharising out of a material breach of Section 6.9(a), or and/or (ii) furnish any non-public to such Person information relating to the Company or any of its Subsidiaries to, or afford access Servicing Rights pursuant to an Acceptable Confidentiality Agreement (provided that to the books extent any nonpublic information pertaining to the Servicing Rights that has not been made available to Purchaser is made available to such Person, make available or records furnish such nonpublic information to Purchaser promptly (and in any event within 24 hours) following the time it is provided to such Person), in the case of each of clauses (i) or (ii), if, and only if, prior to taking such particular action, the Seller Parent Board has determined in good faith after consultation with its financial advisors and outside legal counsel that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal.
(c) Notwithstanding anything in this Section 6.9 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Seller Parent Board may (x) withdraw, modify or amend in any manner adverse to Purchaser its Subsidiaries to, any Third Party for the purpose approval or recommendation of knowingly facilitating this Agreement or knowingly encouraging recommend a Competing Proposal, or (z) approve, endorse or recommend, or enter into an Acquisition Agreement or resolve or agree to take any letter of intentthe foregoing actions (a “Change of Recommendation”) or (y) following receipt of an unsolicited written Competing Proposal that did not result from a material breach of Section 6.9(a) and which the Seller Parent Board determines in good faith, memorandum in consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal, terminate this Agreement in accordance with the provisions of understanding, agreement in principle, Section 10.1(c)(iv) and enter into a definitive acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement in a form customary an “Acquisition Agreement” (for acquisition transactionsthe avoidance of doubt an Acceptable Confidentiality Agreement shall not constitute an Acquisition Agreement)) with respect toto such Superior Proposal, any Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing of the number and identity (to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. Notwithstanding the commencement of the obligations of the Company under this Section 4.02(b), from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in case of each of clauses (x) through and (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised proposal submitted by such Exempted Person on or before if, and only if, the Cut-Off Date, so long as a majority of the members of the Company Seller Parent Board (or any committee thereof, including the Special Committee) determine, has determined in good faith, after consultation with its financial advisors and outside legal advisors, that such amended or revised proposal is bona fide and constitutes, or is reasonably likely to lead to, a Superior Proposal. Notwithstanding anything contained in this Section 4.02(b) to the contrary, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at such time as (x) the Competing Proposal made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each case, to the right of the Exempted Person to amend, change or otherwise modify its Competing Proposal, including to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, howevercounsel, that the Company shall only failure to take such action would be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and inconsistent with its fiduciary duties under applicable LawLaw the Seller Parties comply with Section 6.9(d) and, and if not permissiblein the case of clause (y), the Company shall provide Parent with a general description of Seller pays the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof.
(c) Notwithstanding anything to the contrary contained in Section 4.02(b) (other than with respect to an Exempted Person Break-up Fee in accordance with Section 4.02(b10.3.
(d) during the period after the Solicitation Period End Date but prior Prior to the Cut-Off Date), at any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvals, the Company or the Company Board (or Seller Party taking any committee thereof, including the Special Committee), directly or indirectly through its Representatives, may action permitted (i) furnish nonpublic information under Section 6.9(c)(x), Seller Parent shall (A)provide Purchaser with at least four (4) Business Days’ prior written notice advising Purchaser it intends to any Third Party making effect a Competing Proposal (providedChange of Recommendation and specifying, however, that prior to so furnishing such informationin reasonable detail, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement; reasons therefor and provided, further, that, subject all material information with respect thereto (including in relation to the last sentence of Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to such Third Party and not already provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)all developments related thereto), and (iiB) engage if requested by Purchaser, during such four (4) Business Day period, negotiate in discussions or negotiations good faith with such Third Party with respect Purchaser (to the Competing Proposal if: (xextent Purchaser desires to negotiate) to enable Purchaser to propose in writing an offer binding on Purchaser to effect such Third Party has submitted a Competing Proposal adjustments to the terms and which a majority conditions of this Agreement such that the members of the Company Seller Parent Board (or any committee thereof, including the Special Committee) would determine in good faith, after consultation with its financial advisors and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal; (y) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with outside legal counsel, that the failure of the Seller Parent Board to take such action could make a Change of Recommendation would not be inconsistent with the directors’ fiduciary duties under applicable Law. Prior to taking any of the actions referred to in this Section 4.02(c), the Company shall notify H&H Group and Sub orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 4.02(c).
(d) Except as expressly permitted by this Section 4.02(d), neither the Company Board nor any committee thereof shall: (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, H&H Acquisition Sub, H&H Group or Sub, the approval or recommendation by the Company Board or any such committee, including the Special Committee, of this Agreement or the transactions contemplated hereby; (ii) approve or recommend, or publicly propose to approve or recommend, any Competing Proposal made or received after the date hereof (any of the actions described in clauses (i) and (ii) of this Section 4.02(d), an “Adverse Recommendation Change”); or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Stockholder Approvals, a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreement, and/or effect an Adverse Recommendation Change described in clause (i) of such definition, with respect to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 (A) if the Company Board (or any committee thereof, including the Special Committee) has received a Competing Proposal that, in the good faith determination of a majority of the members of the Company Board (or any committee thereof, including the Special Committee), after consultation with its legal and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or (yii) to effect an Adverse Recommendation Change described in clause under Section 6.9(c)(y), Seller Parent shall provide Purchaser with at least four (i4) of such definition, if a majority of the members of the Company Board Business Days’ prior written notice (or it being understood and agreed that any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable amendment to the Company Board prior to the date hereof, amount or if known or reasonably foreseeable to the Company Board prior to the date form of this Agreement, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreement, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent consideration payable in connection with the directors’ fiduciary duties under applicable Law.
(e) The Company shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is shall require a Superior Proposal or to terminate this Agreement as permitted under Section 4.02(d) with respect to new notice and a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(e) in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), (iiBusiness Day period) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent, H&H Acquisition Sub, H&H Group and Sub advising Purchaser that the Company Seller Parent Board intends to take such action and describing action, specifying the material terms and conditions of the Superior Proposal and that is the basis of relevant Seller Party shall, if requested by Purchaser, during such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of the Company and under applicable Law, the identity of the Third Party; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity), (iii) during the four (4) business day Business Day period following Parent’s(or two (2) Business Day period, H&H Acquisition Sub’s, H&H Group’s and Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall use reasonable best efforts to cause its Representatives toif applicable), negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub in good faith Purchaser (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire Purchaser desires to negotiate) to make enable Purchaser to propose in writing an offer binding on Purchaser to effect such adjustments in to the terms and conditions of this Agreement so such that such Superior Competing Proposal ceases to would no longer constitute a Superior Proposal; .
(e) Seller shall notify Purchaser promptly (but in any event within 48 hours) after receipt of any bona fide Competing Proposal and (iv) following the end material terms and conditions of any such Competing Proposal. Seller Parent shall keep Purchaser reasonably informed of the four status and material details (4including any material amendments) business day periodof any such Competing Proposal and keep Purchaser reasonably informed as to the material details of all discussions or negotiations with respect to any such Competing Proposal (in each case in a manner that is not unduly disruptive of Seller Parent’s ability to conduct good faith discussions in accordance with this Section 6.9 with the party making such Competing Proposal and its Representatives) and shall provide Purchaser within 48 hours after receipt thereof all copies of any other material documentation, including any drafts of an Acquisition Agreement, with respect to such Competing Proposal; provided that, for the sake of clarity, it is understood and agreed that all such information, documentation and communications shall be subject to the Confidentiality Agreement.
(f) Nothing contained in this Section 6.9 or elsewhere in this Agreement shall prohibit any Seller Party or the Seller Parent Board, directly or indirectly through its Representatives, from complying with its disclosure obligations under applicable Law with regard to an Competing Proposal, including taking and disclosing to the Seller Parent’s shareholders a majority of position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the members of the Company Board Exchange Act (or any committee thereof, including the Special Committee) shall have determined in good faith, taking into account any changes to this Agreement timely proposed in writing by Parent, H&H Acquisition Sub, H&H Group and Sub in response similar communication to the Notice Seller Parent’s shareholders), and none of Superior the foregoing shall constitute a Change of Recommendation; provided that any such disclosure (other than a “stop, look and listen” communication or other similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or an express rejection of the Competing Proposal or otherwise, and after consultation with its legal and financial advisors, that a reaffirmation of the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 4.02(e); provided, however, that references to the four (4Seller Parent Recommendation) business day period above shall be deemed to be references a Change of Recommendation if the Seller Parent Board fails to a three expressly and publicly reaffirm the Seller Parent Recommendation within five (35) business day period).
Business Days following any written request by Purchaser in response to such Seller Party disclosure (fit being agreed that Purchaser may only make one (1) The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) request with respect to an Intervening Event unless any single such disclosure); provided that, in the event that a third party commences a tender offer or exchange offer, the Seller Parent Board shall have at least ten (i10) Business Days from the Company has provided a written notice (a “Notice date of Intervening Event”) commencement of the offer to expressly and publicly reaffirm the Seller Parent Recommendation.
Appears in 1 contract
Competing Proposals. (a) Except as otherwise provided in this Section 6.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company and its Subsidiaries will not, and will use their reasonable best efforts to cause their respective officers, directors, employees and other Representatives not to, (i) initiate, solicit or knowingly encourage or facilitate, directly or indirectly, the making of any Competing Proposal or (ii) engage in negotiations or substantive discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 6.5), or furnish any nonpublic information to, any Person relating to a Competing Proposal or any inquiry or proposal that may reasonably be expected to lead to a Competing Proposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Competing Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Competing Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on at any time from the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the day that is thirty (30) days following prior to the date of this Agreement (that the “Solicitation Period End Date”)Requisite Stockholder Approval is obtained at the Stockholders’ Meeting, in the event that the Company receives a written Competing Proposal, the Company and its Subsidiaries and their respective Representatives shall have the right (acting under the direction board of the Company Board or any committee thereof, including the Special Committee) to, directly or indirectly, (i) solicit, initiate, facilitate and encourage any Competing Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more confidentiality agreements having terms and provisions that are substantially similar to those contained directors may engage in the Confidentiality Agreement, provided, that, for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an “Acceptable Confidentiality Agreement”); provided, however, that, subject to the last sentence of this Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to any Third Party and not previously provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room); and (ii) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Competing Proposal or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Competing Proposal. Notwithstanding the foregoing, the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of such information in the context of considering Competing Proposals prior to the date of this Agreement.
(b) Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), from and after the Solicitation Period End Date, neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives to (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Parties that may be ongoing with respect to a Competing Proposal, and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.01, directly or indirectly, (x) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (y) engage in any substantive discussions or negotiations with, or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford and other access to the books or records of the Company or its Subsidiaries to, any Third Party for the purpose of knowingly facilitating or knowingly encouraging a Competing Proposal, or (z) approve, endorse or recommend, or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement in a form customary for acquisition transactions) with respect to, any Person making such Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing its Representatives or potential sources of the number and identity (to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person financing if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof. Notwithstanding the commencement Company’s board of the obligations of the Company under this Section 4.02(b), from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in clauses (x) through (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised proposal submitted by such Exempted Person on or before the Cut-Off Date, so long as a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine, directors determines in good faith, after consultation with its the Company’s outside legal and financial and legal advisors, that such amended or revised proposal is bona fide and constitutes, or is Competing Proposal could reasonably likely be expected to lead to, result in a Superior Proposal. Notwithstanding anything contained in this Section 4.02(b) to the contrary, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at such time as ; provided that (x) the Competing Proposal made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each case, to the right of the Exempted Person to amend, change or otherwise modify its Competing Proposal, including to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, however, that the Company shall only be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and under applicable Law, and if not permissible, the Company shall provide Parent with a general description of the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof.
(c) Notwithstanding anything to the contrary contained in Section 4.02(b) (other than with respect to an Exempted Person in accordance with Section 4.02(b) during the period after the Solicitation Period End Date but prior to the Cut-Off Date), at furnishing any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvals, the Company or the Company Board (or any committee thereof, including the Special Committee), directly or indirectly through its Representatives, may (i) furnish nonpublic information to any Third Party making a Competing Proposal (provided, however, that prior to so furnishing such information, the Company receives from such Person, to the Third Party extent such Person is not already subject to a confidentiality agreement with the Company, an executed Acceptable Confidentiality Agreement; and provided, further, that, subject confidentiality agreement containing terms that are not materially less favorable to the last sentence Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not restrict the making of Section 4.02(a), any material non-public information concerning Competing Proposals (and related communications) to the Company or its Subsidiaries the Company’s board of directors) and (y) any such nonpublic information so furnished in writing has been previously provided to such Third Party and not already provided Parent or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to Parent substantially concurrently with it being so furnished to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)), and (ii) engage in discussions Person or negotiations with such Third Party with respect to the Competing Proposal if: (x) such Third Party has submitted a Competing Proposal and which a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal; (y) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with legal counsel, that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable LawRepresentatives. Prior to or substantially concurrently with taking any of the actions referred to in this Section 4.02(c6.5(b), the Company shall notify H&H Group and Sub orally and in writing Parent that it proposes to furnish non-public and thereafter make available to Parent any nonpublic information and/or and promptly notify Parent if it has entered or intends to enter into discussions or negotiations as provided in this Section 4.02(c6.5(b).
(dc) Except as expressly permitted by otherwise provided in this Section 4.02(d)Agreement, neither the board of directors of the Company Board nor (or any committee thereof shall: thereof) shall not (i) (A) withdraw or modify, or propose publicly propose to withdraw or modify, in a manner adverse to Parent, H&H Parent or Acquisition Sub, H&H Group or Sub, the approval or recommendation by the Company Board Recommendation or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any such committee, including the Special Committee, of Competing Proposal (any action described in this Agreement clause (i) being referred to as an “Adverse Recommendation Change”) or the transactions contemplated hereby; (ii) approve or recommend, or publicly propose allow the Company or any of its Affiliates to approve execute or recommendenter into, any letter of intent, memorandum of understanding or definitive merger or similar agreement with respect to any Competing Proposal made or received after the date hereof (any of the actions described other than a confidentiality agreement referred to in clauses (i) and (ii) of this Section 4.02(d6.5(b), an “Adverse Recommendation Change”); or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything in this Agreement to the contrary set forth in this Agreementcontrary, at any time prior to the Stockholder Approvals, a majority receipt of the members Requisite Stockholder Approval, (i) the board of directors of the Company Board (or any committee thereof, including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreement, and/or effect may make an Adverse Recommendation Change described in clause (i) of such definition, with respect to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 (A) if the Company Board (or any committee thereof, including the Special Committee) has received a Competing Proposal that, in the good faith determination board of a majority of the members directors of the Company Board determines in good faith (or any committee thereof, including the Special Committee), after consultation with its legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of ) that the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that failure to take such action would be reasonably be expected likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable LawLaw and (ii) the board of directors of the Company may enter into a binding written agreement substantially concurrently with the termination of this Agreement in accordance with Section 8.1(c)(ii) in order to enter into a transaction that the board of directors of the Company has determined in good faith (after consultation with its counsel and financial advisors) constitutes a Superior Proposal; provided, or however, that (y1) no Adverse Recommendation Change may be made and (2) no termination of this Agreement pursuant to effect this Section 6.5(c) and Section 8.1(c)(ii) may be effected, in each case unless (A) Parent has received a written notice from the Company advising Parent that the board of directors of the Company intends to make an Adverse Recommendation Change described in clause (ia “Notice of Adverse Recommendation”) of such definition, if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable to the Company Board prior to the date hereof, or if known or reasonably foreseeable to the Company Board prior to the date of this Agreement, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreement, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(e) The Company shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal or to terminate this Agreement as permitted under Section 4.02(d) with respect pursuant to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(e6.5(c) in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2Section 8.1(c)(ii) sentences of Section 4.02(b), (ii) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parentand specifying the reasons therefor, H&H Acquisition Subincluding, H&H Group and Sub that if the Company intends to take such basis of the proposed action and describing by the material Company’s board of directors is a Superior Proposal, the terms and conditions of the any such Superior Proposal that is the basis of such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of the Company and under applicable Law, the identity of the Third Party; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity)Proposal, (iiiB) during the four five (45) business day Business Day period following Parent’s, H&H Acquisition Sub’s, H&H Group’s and Sub’s receipt of the Notice of Superior ProposalProposal or Notice of Adverse Recommendation, as applicable, the Company shall, and shall use reasonable best efforts to cause its Representatives to, negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub Parent in good faith (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement Agreement, the Financing Commitments and/or the Guaranty so that such Superior Proposal ceases to constitute a Superior Proposal; Proposal and/or so that the failure to take make an Adverse Recommendation Change would not be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law and (ivC) following the end of the four five (45) business day Business Day period, a majority the board of the members directors of the Company Board (or any committee thereof, including the Special Committee) shall have determined in good faithfaith after consultation with its financial and legal advisors, taking into account any changes to this Agreement timely Agreement, the Financing Commitments and/or the Guaranty proposed in writing by Parent, H&H Parent and Acquisition Sub, H&H Group and Sub in response to the Notice of Superior Proposal or Notice of Adverse Recommendation or otherwise, and after consultation with its legal and financial advisors, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior ProposalProposal and/or that the failure to take make an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 4.02(e6.5(c); provided, however, that references to the four five (45) business day Business Day period above shall be deemed to be references to a three (3) business day Business Day period. Subject to the foregoing, in determining whether to make an Adverse Recommendation Change or in determining whether a Competing Proposal constitutes a Superior Proposal, the board of directors of the Company shall take into account any changes to the terms of this Agreement timely proposed by Parent in response to a Notice of Adverse Recommendation, a Notice of Superior Proposal or otherwise.
(d) The Company shall promptly, and in any event within two (2) Business Days, advise Parent of any Competing Proposal, the material terms and conditions of any such Competing Proposal (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and the identity of the Person making any such Competing Proposal. The Company shall keep Parent reasonably informed on a reasonably current basis of the status and material details (including any material change to the terms thereof) of any such Competing Proposal and any discussions and negotiations concerning the material terms and conditions thereof. 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 6.5(d) or complying with Section 6.5(c).
(e) Nothing in this Agreement shall restrict the Company from taking or disclosing a position contemplated by Rules 14d-9 or 14e-2(a) under the Exchange Act, or otherwise making disclosure to comply with applicable Law (it being agreed that a “stop, look and listen” communication by the board of directors to the Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange Act or a factually accurate public statement by the Company that describes the Company’s receipt of a Competing Proposal and the operation of this Agreement with respect thereto shall not be deemed to be an Adverse Recommendation Change or give rise to a Parent termination right pursuant to Section 8.1(d)(ii)).
(f) The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) with respect to an Intervening Event unless (i) the Company has provided a written notice (a “Notice For purposes of Intervening Event”) this Agreement:
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Competing Proposals. (a) Notwithstanding anything to Except for the contrary contained in Merger contemplated by this Agreement, during the period beginning on from the date hereof until the Closing, unless and until this Agreement shall have been validly terminated in accordance with Article 9 of this Agreement Agreement, M & I and continuing until 11:59 p.m. AAT shall not (New York City time) on the day that is thirty (30) days following the date and neither will permit any of this Agreement (the “Solicitation Period End Date”its officers, directors, agents or Representatives to), the Company and its Subsidiaries and their respective Representatives shall have the right (acting under the direction of the Company Board or any committee thereof, including the Special Committee) to, directly or indirectly, (ia) solicit, initiate, facilitate and encourage any Competing Proposals, including by way of providing access to non-public information pursuant to (but only pursuant to) one or more confidentiality agreements having terms and provisions that are substantially similar to those contained in the Confidentiality Agreement, provided, that, for avoidance of doubt, such confidentiality agreement need not include any standstill restriction (each, an “Acceptable Confidentiality Agreement”); provided, however, that, subject to the last sentence of this Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to any Third Party and not previously provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room); and (ii) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Competing Proposal or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Competing Proposal. Notwithstanding the foregoing, the Company shall not be required to provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 4.02, except in a manner consistent with the Company’s past practice in dealing with the disclosure of such information in the context of considering Competing Proposals prior to the date of this Agreement.
(b) Except as expressly permitted by this Section 4.02(b) or Section 4.02(c), from and after the Solicitation Period End Date, neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives to (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Parties that may be ongoing discussions with respect to a Competing ProposalTransaction (as defined below), and (iib) request disclose any such Third Party to promptly return or destroy all confidential information concerning the Company business and its Subsidiaries. Except as expressly permitted by this Section 4.02(b) or Section 4.02(c)properties of such party, neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause each of its Representatives not to, from and after the Solicitation Period End Date until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.01, directly or indirectly, (x) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (y) engage in any discussions or negotiations with, or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the properties, books or records of the Company such party or its Subsidiaries to, take any Third Party for the purpose of knowingly facilitating or knowingly encouraging other action related to a Competing ProposalTransaction, or (zc) approve, endorse or recommendrecommend any Competing Transaction, or (d) execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement intent or similar definitive document or any agreement (other than a confidentiality agreement in a form customary for acquisition transactions) with respect to, any Competing Proposal (an “Alternative Acquisition Agreement”). No later than two (2) business days following the Solicitation Period End Date, the Company shall notify H&H Group and Sub in writing of the number and identity (contemplating or otherwise relating to the extent the Company is permitted under any contractual obligations and under applicable Law to disclose the identity, and if not permissible, shall include a general description (i.e., a financial buyer or a strategic buyer in lieu of the identity)) of Exempted Persons that submitted a Competing Proposal on or before the Solicitation Period End Date; provided, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereofTransaction. Notwithstanding the commencement of the obligations of the Company under this Section 4.02(b)foregoing, neither AAT nor M & I shall be prohibited from and after the Solicitation Period End Date, the Company may continue to engage in the activities described in clauses (x) through (y) of this Section 4.02(b) above with respect to a Competing Proposal submitted by an Exempted Person on or before the Solicitation Period End Date until 11:59 p.m. (Pacific time) on the day that is fifteen (15) days following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised proposal submitted by such Exempted Person on or before the Cut-Off Date, so long as a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine, in good faith, after consultation with its financial and legal advisors, that such amended or revised proposal is bona fide and constitutesfurnishing information to, or is reasonably likely to lead to, a Superior Proposal. Notwithstanding anything contained in this Section 4.02(b) to the contrary, an Exempted Person will no longer be an Exempted Person for all purposes under this Agreement immediately at such time as (x) the Competing Proposal made by such Exempted Person is withdrawn, is terminated, expires or the Competing Proposal of such Exempted Person fails to satisfy the requirements contained in the definition of “Exempted Person”, subject, in each case, to the right of the Exempted Person to amend, change or otherwise modify its Competing Proposal, including to satisfy the requirements contained in the definition of “Exempted Person”, or (y) the discussions or negotiations with such Exempted Person have been finally terminated by the Company or finally terminated by the Exempted Person. The Company shall notify H&H Group promptly when an Exempted Person ceases to be an Exempted Person; provided, however, that the Company shall only be required to disclose the identity of such Person who ceases to be an Exempted Person to the extent permissible under any contractual obligations and under applicable Law, and if not permissible, the Company shall provide Parent with a general description of the Exempted Person (i.e., a financial buyer or a strategic buyer in lieu of the identity); provided, further, that in no event shall the Company be required to disclose the identity of an Exempted Person if the Company entered into a confidentiality agreement with such Exempted Person prior to the date hereof.
(c) Notwithstanding anything to the contrary contained in Section 4.02(b) (other than with respect to an Exempted Person in accordance with Section 4.02(b) during the period after the Solicitation Period End Date but prior to the Cut-Off Date), at any time after the Solicitation Period End Date (or the Cut-Off Date, as applicable) and prior to obtaining the Stockholder Approvals, the Company or the Company Board (or any committee thereof, including the Special Committee), directly or indirectly through its Representatives, may (i) furnish nonpublic information to any Third Party making a Competing Proposal (provided, however, that prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement; and provided, further, that, subject to the last sentence of Section 4.02(a), any material non-public information concerning the Company or its Subsidiaries provided to such Third Party and not already provided or made available to H&H Group shall be provided to H&H Group or Sub as promptly as reasonably practicable after it is provided to such Third Party (which requirement may be satisfied by posting such information to the Electronic Data Room)), and (ii) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal if: (x) such Third Party has submitted a Competing Proposal and which a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, constitutes, or could reasonably be expected to lead to, a Superior Proposal; (y) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b); and (z) a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with legal counsel, that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law. Prior to taking any of the actions referred to in this Section 4.02(c), the Company shall notify H&H Group and Sub orally and in writing that it proposes to furnish non-public information and/or enter entering into discussions or negotiations as provided in this Section 4.02(c).
(d) Except as expressly permitted by this Section 4.02(d)connection with an unsolicited proposal for a Competing Transaction if, neither and only to the Company Board nor any committee thereof shall: extent that, such party has received an unsolicited bona fide written offer from a third party to enter into a Competing Transaction on terms and conditions that the board of directors of such party determines, in its reasonable, good faith judgment, after obtaining and taking into account such matters that its board of directors deems relevant following consultation with its outside legal counsel and financial advisor, if any, (i) withdraw or modifyis more favorable, or publicly propose from a financial point of view, to withdraw or modify, in a manner adverse to Parent, H&H Acquisition Sub, H&H Group or Sub, such party’s stockholders than the approval or recommendation by terms of the Company Board or any such committee, including the Special Committee, of this Agreement or the transactions contemplated herebyMerger; (ii) approve is reasonably capable of being consummated; (iii) consummation of such Competing Transaction would not require such party to breach any covenant or recommendagreement under this Agreement, and (iv) that such party’s Board of Directors is required to consider such Competing Offer in order to comply with its fiduciary obligations to its stockholders imposed by applicable law. Prior to furnishing such information to, or publicly propose entering into discussions or negotiations regarding a Competing Transaction such party shall obtain from the parties proposing such Competing Transaction an executed confidentiality agreement on terms no less favorable to approve or recommend, any such party than those contained in the Confidentiality Agreement between M & I and AAT. A “Competing Proposal made or received after the date hereof (Transaction” means any of the actions described in clauses following involving either AAT or M & I or their respective stockholders (other than the Merger contemplated by this Agreement): (i) and any acquisition, merger, take-over bid, sale of substantial assets, business combination, reorganization, recapitalization, liquidation, dissolution or similar transactions involving such party or any Subsidiary, (ii) any sale, lease, exchange, transfer or other disposition of this Section 4.02(d)15% or more of the assets of such party or any Subsidiary outside of the ordinary course of business, an “Adverse Recommendation Change”); or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Stockholder Approvals, a majority sale of shares of the members capital stock of such party (including without limitation by way of a tender offer). Each of M & I and AAT agrees to notify the other party within one (1) day of the Company Board (commencement of any contacts, discussions or any committee thereof, including the Special Committee) shall be permitted (x) to terminate this Agreement to substantially concurrently enter into a definitive agreement, and/or effect an Adverse Recommendation Change described in clause (i) of such definition, with respect negotiations relating to a Superior Proposal, subject to compliance in all material respects with Section 4.02(e) and, if applicable, Section 7.05 (A) if the Company Board (or any committee thereof, including the Special Committee) has received a proposed Competing Proposal that, in the good faith determination of a majority of the members of the Company Board (or any committee thereof, including the Special Committee), after consultation with its legal and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be timely offered in writing by Parent, H&H Acquisition Sub, H&H Group and Sub pursuant to Section 4.02(e), (B) such Competing Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), and (C) if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or (y) to effect an Adverse Recommendation Change described in clause (i) of such definition, if a majority of the members of the Company Board (or any committee thereof, including the Special Committee) determine in good faith, after consultation with its financial and legal advisors, that, in light of material facts, events, developments or circumstances that were not known by or reasonably foreseeable to the Company Board prior to the date hereof, or if known or reasonably foreseeable to the Company Board prior to the date of this Agreement, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date of this Agreement, other than a Competing Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, or the consequences thereof (an “Intervening Event”), the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable LawTransaction.
(e) The Company shall not be entitled to effect an Adverse Recommendation Change with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal or to terminate this Agreement as permitted under Section 4.02(d) with respect to a Competing Proposal that the Company Board (or any committee thereof, including the Special Committee) has determined is a Superior Proposal unless (i) with respect to such Competing Proposal, the Company has complied with the terms of this Section 4.02(e) in all material respects and such Superior Proposal did not result from a material breach of either of the first two (2) sentences of Section 4.02(b), (ii) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent, H&H Acquisition Sub, H&H Group and Sub that the Company intends to take such action and describing the material terms and conditions of the Superior Proposal that is the basis of such action (including copies of any Alternative Acquisition Agreement and, to the extent permissible under any contractual obligations of the Company and under applicable Law, the identity of the Third Party; provided, however, that in no event shall the Company be required to disclose the identity of any Third Party if the Company entered into a confidentiality agreement with such Third Party prior to the date hereof, and if not permissible, the Company shall disclose to Parent a general description of the Third Party (i.e., a financial buyer or a strategic buyer in lieu of the identity), (iii) during the four (4) business day period following Parent’s, H&H Acquisition Sub’s, H&H Group’s and Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall use reasonable best efforts to cause its Representatives to, negotiate with Parent, H&H Acquisition Sub, H&H Group and Sub in good faith (to the extent Parent, H&H Acquisition Sub, H&H Group and Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and (iv) following the end of the four (4) business day period, a majority of the members of the Company Board (or any committee thereof, including the Special Committee) shall have determined in good faith, taking into account any changes to this Agreement timely proposed in writing by Parent, H&H Acquisition Sub, H&H Group and Sub in response to the Notice of Superior Proposal or otherwise, and after consultation with its legal and financial advisors, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 4.02(e); provided, however, that references to the four (4) business day period above shall be deemed to be references to a three (3) business day period).
(f) The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to clause (y) under Section 4.02(d) with respect to an Intervening Event unless (i) the Company has provided a written notice (a “Notice of Intervening Event”)
Appears in 1 contract
Sources: Merger Agreement (American Access Technologies Inc)