Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so. (b) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting). (c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement. (d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”). (e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent). (f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Competing Transactions. (a) The Nothing contained in this Agreement shall prohibit the Company agrees that from from, prior to the date of this Agreement until the Effective Time orStockholder's Meeting (i) furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited written, bona fide proposal to the Company with respect to a Competing Transaction which could reasonably be expected to result in a Superior Proposal, if, (A) the failure to take such action would be inconsistent with the Board's and the Independent Committee's fiduciary duties to the Company's stockholders under applicable law, and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company (x) provides reasonable notice to Concord to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and (y) receives from such person a fully executed confidentiality agreement, (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 5.2, or recommending an unsolicited, bona fide proposal with respect to a Competing Transaction which could reasonably be expected to result in a Superior Proposal, following the receipt of such a proposal, if earlierthe failure to take such action would be inconsistent with the Board's and the Independent Committee's fiduciary duties to the Company's stockholders under applicable law. As used in this Agreement, the termination of this Agreement in accordance with Article IX, neither it nor "Competing Transaction" shall mean any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives the following (including without limitation any investment banker, attorney or account retained other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, : (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or assets or otherwise) other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, to return (lease, exchange, mortgage, pledge, transfer or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms other disposition of assets representing 20% or more of the applicable confidentiality agreement andtotal assets of the Company and its Subsidiaries, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
in a single transaction or series of transactions; (biii) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, tender offer or request (exchange offer for 20% or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to more of the Company or any outstanding shares of its Subsidiaries or for access to the business, properties, assets, books or records capital stock of the Company or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired Beneficial Ownership of 15% or more or such person or group having increased its Beneficial Ownership beyond 15% of the outstanding shares of capital stock of the Company; or (v) any public announcement of a proposal, plan or intention to do any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer foregoing or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and any agreement to engage in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed For purposes of this Agreement, "Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the status shares of Company Common Stock and material details Preferred Stock then outstanding or all or substantially all of (including discussions with respect the assets of the Company and the assumption of the liabilities and obligations of the Company to or amendments or proposed amendments to) be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) is not subject to any such proposalfinancing conditions or contingencies, inquiry, offer or request and (ii) any information requested provides holders of or provided Company Common Stock and Preferred Stock with per share consideration that the Independent Committee determines in good faith, after receipt of advice of its financial advisor, is more favorable from a financial point of view than the consideration to be received by holders of Company Common Stock and Preferred Stock in the Merger, (iii) is determined by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Independent Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (judgment, after having received the receipt of advice of a its financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case , to be likely of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation being completed (taking into account all changes proposed by Parentlegal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iv) does not, in the definitive agreement, contain any "due diligence" conditions, and (2v) has not been obtained by or on behalf of the Company in the case violation of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation)4.3.
Appears in 2 contracts
Sources: Merger Agreement (Milestone Properties Inc), Merger Agreement (Concord Assets Group Inc)
Competing Transactions. (a) The Company agrees that from Consummation of the Transactions is subject to approval by the Bankruptcy Court and the consideration by Sellers and the Bankruptcy Court of higher or better competing bids. From and after the Effective Date until the date that the auction contemplated by the Bidding Procedures Order (the “Auction”) is declared closed by Sellers, Sellers shall be permitted to cause their respective Representatives and Affiliates to (i) initiate contact with, or solicit or encourage submission of any inquiries, proposals or offers by, any Person (in addition to Purchaser and its Affiliates, agents, and representatives) with respect to any transaction (or series of transactions) involving the direct or indirect sale, transfer or other disposition of all, or a material portion of, the Purchased Assets to a purchaser or purchasers other than Purchaser or effecting any other transaction (including a Chapter 11 plan) the consummation of which would be substantially inconsistent with the Transactions (a “Competing Transaction”), and (ii) respond to any inquiries or offers to purchase all or any part of the Purchased Assets (whether in combination with other assets of Sellers or their Affiliates or otherwise) and perform any and all other acts related thereto which are required or permitted under the Bankruptcy Code, the Bidding Procedures Order or other applicable Law, including supplying information relating to the Business and the assets of Sellers to prospective purchasers; provided, however, that in no event shall Sellers or their Representatives encourage, support or negotiate the terms of any transaction that would supplant this Agreement until or the Effective Time orTransactions, if earlier, including Purchaser’s position as the termination “stalking horse bidder,” outside of this Agreement the process contemplated in the Bidding Procedures or Bidding Procedures Order.
(b) Other than to the extent expressly permitted by and in accordance with Article IXthis Agreement and the Bidding Procedures, neither it nor any of its Subsidiaries nor any of their respective Representatives willfrom and after the date the Bidding Procedures Order is entered by the Bankruptcy Court until the date that the Auction is declared closed by Sellers, Sellers will not, and that it will cause each of its Subsidiaries and each of not permit their Affiliates or its and its Subsidiaries’ their Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information)contact with, or take solicit or encourage submission of any other action to knowingly facilitateinquiries, proposals or offers by, any inquiries or the making of any proposal or offer Person (including without limitation any proposal or offer in addition to the Company’s shareholdersPurchaser, Affiliates and its and their Representatives) with respect to, to a Competing Transaction or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintainengage in, continue or otherwise engage or participate in any discussions or negotiations withregarding, or provide any non-public information or data concerning the Company or to any Subsidiary Person relating to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction. For the avoidance of doubt, (iii) Sellers will not pursue or agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (as expressly permitted by and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soBidding Procedures.
(b) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 2 contracts
Competing Transactions. (a) The Company agrees that from the date of Except as otherwise set forth in this Agreement Section, until the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its SubsidiariesCompany, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the The Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within 48 hourshours after the Company attains knowledge thereof) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting). The Company agrees that it shall promptly provide to Parent any non-public information concerning the Company that may be made available pursuant to Section 7.03(c) to any other Person in response to, or in connection with, any such proposal, inquiry, offer or request (or any amendment thereto), to the extent such information has not previously been made available to Parent or its Representatives.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon Board (after taking into account the recommendation of the Special Committee, ) furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel, which, for the avoidance of doubt, may include the financial advisor and outside legal counsel to the Special Committee) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least two (2) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon after taking into account the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon after taking into account the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel, which, for the avoidance of doubt, may include the financial advisor and outside legal counsel to the Special Committee) constitutes a Superior Proposal, (i) effect a Change in the Company Recommendation Recommendation, (ii) grant a limited waiver with respect to a standstill agreement to the extent required to allow the Company Board to further evaluate such Superior Proposal and solely for such purpose, which waiver shall be limited in duration to no more than ten (10) Business Days and in scope to only allow the applicable offeror to make a Superior Proposal, or (iii) authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon after taking into account the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to would be inconsistent with the Company Board’s its fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five (5) Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation Recommendation, or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e), provided, further, that with respect to the new 7.03 Notice from the Company, the Notice Period shall be deemed to be a three (3) Business Day period rather than the five (5) Business Day period first described above), and (D) following the end of the Notice Period, the Company Board (upon after taking into account the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel, which, for the avoidance of doubt, may include the financial advisor and outside legal counsel to the Special Committee) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) ), and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange ActAct (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation for all purposes under this Agreement and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 2 contracts
Sources: Merger Agreement (NewQuest Asia Fund I, L.P.), Merger Agreement (China Hydroelectric Corp)
Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives willshall not, and that it will cause each of its Subsidiaries and each of shall not permit or authorize the Company's subsidiaries, its and its Subsidiaries’ Representatives their officers, directors, employees, controlled affiliates, agents or other representatives (including without limitation any investment banker, financial advisor, attorney or account accountant retained by the Company it or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not tosubsidiaries), directly or indirectly, (i) solicitto initiate, initiate solicit or knowingly encourage (including by way of furnishing nonpublic informationinformation or assistance), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect relating to, or that may reasonably be expected to lead to, any Competing Alternative Transaction, or enter into discussions (iiexcept as to the existence of these provisions) enter into, maintain, continue or otherwise engage or participate in negotiate with any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing an Alternative Transaction, (iii) or agree to, approve, or endorse, recommend, execute, enter into or consummate any Competing Alternative Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take notify (within 24 hours after the Company attains knowledge thereof) Parent of all action reasonably necessary relevant terms of any such inquiries or proposals received by the Company or by any subsidiary or by any such officer, director, employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to terminate any of such matters and if such inquiry or proposal is in writing, the Company shall deliver or cause to be terminated delivered (within 24 hours of receipt) to Parent a copy of such inquiry or proposal and update Parent (within 24 hours of receipt) as to any such waiver previously granted material changes (and provide Parent with copies of same if in writing) with respect to any provision of such inquiry or proposal, it being understood that Parent shall hold any such confidentiality, standstill inquiry or similar agreement proposal or Takeover Statute and term confidential pursuant to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any the terms of the foregoing. The Company acknowledges and agrees Confidentiality Agreement; provided, however, that nothing contained in this subsection (a) shall prohibit the doing board of any directors of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any subsidiaries, and each of their Representatives with respect to a Competing Transaction. Except for officers, directors, employees, affiliates, agents or other representatives (including without limitation any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c)investment banker, the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4financial advisor, 2013 in connection with such Person’s consideration of acquiring (whether attorney or accountant retained by merger, acquisition of share or assets or otherwise) the Company it or any of its Subsidiariessubsidiaries) from (i) furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any persons or entity in connection with an unsolicited bona fide proposal in writing by such person or entity relating to an Alternative Transaction if, and only to the extent that (A) the board of directors of the Company determines in good faith, after consultation with and taking into account advice of its outside legal counsel, that such action is necessary to comply with its fiduciary duties under Delaware law, (B) such action is in response to an unsolicited bona fide written proposal made by a third party relating to an Alternative Transaction on terms that the Company's board of directors believes, after consultation with and taking into account advice from the Company's financial advisor and outside legal counsel to be more favorable to the Company's stockholders than the Company Merger or may reasonably be expected to result in an Alternative Transaction on terms that the Company's board of directors believes taking into account advice from the Company's financial advisor and outside legal counsel would be more favorable to the Company's stockholders than the Company Merger, and in each case (I) any amount of financing, to return the extent required, is (in the good faith judgment of the Company's board of directors, after consultation with the Company's financial advisors and outside legal counsel) then reasonably certain of being obtained on a timely basis, (II) there is no condition to closing such Alternative Transaction relating to the performance or completion of due diligence (it being understood that customary closing conditions relating to the accuracy of representations and warranties shall not be deemed to be such a condition) with respect to the Company by such third party, and (III) such Alternative Transaction is for more than 50% of the voting power of the voting securities of the Company then outstanding or all or substantially all of the assets of the Company and its subsidiaries, taken as a whole (a "Superior Proposal"), and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity the Company (x) provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (y) the Company receives from such person or entity an executed confidentiality agreement with terms no less restrictive than those contained in the Confidentiality Agreement; (ii) complying with Rule 14e-2 promulgated under the Exchange Act or from making any legally required disclosure to stockholders with regard to an Alternative Transaction; provided, however, that neither Company nor its Board of Directors nor any committee thereof shall, except in the event that such Alternative Transaction constitutes a Superior Proposal, withdraw, qualify, or modify, or propose to withdraw, qualify or modify, its position with respect to the Company Merger or this Agreement or approve or recommend, or propose to approve or recommend an Alternative Transaction; or (iii) in the event of a Superior Proposal, to enter into an agreement or understanding with respect to the Superior Proposal; provided, however, that if permitted by Parent proposes to amend this Agreement after receipt of a notice described under Section 6.03(c) below, the applicable confidentiality board of directors of the Company shall consider such proposed amendments and shall not enter into any agreement regarding such Alternative Transaction unless it has provided the Parent with written notice, at least twenty-four (24) hours in advance of entering into such agreement, destroy) all information required to be returned (or, if applicable, destroyed) by which notice shall indicate that the board of directors has reconfirmed its view that such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soAlternative Transaction remains a Superior Proposal.
(b) The Company shall promptly immediately cease and cause to be terminated any existing discussions or negotiations with any parties (and in any event within 48 hoursother than Parent) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) conducted heretofore with respect to a Competing any Alternative Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it not to release any third party from any confidentiality or standstill agreement to which the Company is a party.
(c) In addition to the foregoing, the Company shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 forty-eight (48) hours prior written notice (or such lesser prior written notice as provided to the members of the Company's board of directors but in no event less than eight (8) hours) of any meeting of the Company Board or the Special Committee Company's board of directors at which the Company Board or the Special Committee Company's board of directors is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (Bii) provide Parent with at least five (5) business days prior written notice (or such lesser prior notice as provided to the failure to furnish such information to, or enter into such discussions with, members of the Person who made such proposal or offer would Company's board of directors but in no event less than forty-eight (48) hours) of any meeting of the Company's board of directors at which the Company's board of directors is reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice recommend a Superior Proposal to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreementstockholders.
(d) Except as In addition to the obligations of the Company set forth in this Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub6.03, the Company Recommendation shall advise Parent (within 48 hours of receipt) orally and in writing of any request received by the Company for nonpublic information which the Company reasonably believes would lead to an Alternative Transaction or of any Alternative Transaction, or any inquiry received by the Company with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include that the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating reasonably should believe would lead to any Competing Alternative Transaction or inquiry, and the identity of the person or group making any such request, Alternative Transaction or inquiry. The Company will update Parent (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)within 24 hours thereof) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating as to any Competing material changes with respect to such request, Alternative Transaction (an “Alternative Acquisition Agreement”)or inquiry.
(e) Notwithstanding anything The Company shall use commercially reasonable efforts to ensure that the contrary contained hereinofficers, at any time prior to the receipt directors and employees of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking each subsidiary and any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, investment banker or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 advisor or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement representative retained by the Company that describes are aware of the Company’s receipt of a Competing Transaction and the operation of restrictions described in this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation)Section.
Appears in 1 contract
Sources: Merger Agreement (Pinnacor Inc)
Competing Transactions. (a) The Company agrees Sellers and RMST agree that from (i) between the date of this Agreement until and the Effective Time ordate the Bidding Procedures Order is entered by the Bankruptcy Court and (ii) from and after the date that the auction is declared closed by Sellers and RMST, if earlierSellers and RMST will not, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of and will not permit their Affiliates or their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (iA) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations contact with, or provide solicit or encourage submission of any non-public information inquiries, proposals or data concerning the Company or any Subsidiary tooffers by, any Person with respect to a Competing Transaction or entity in furtherance of such inquiries otherwise facilitate any effort or attempt to obtain make a proposal or offer with respect to a Competing Transaction or (B) engage in, continue or otherwise participate in any proposal discussions or offer that may reasonably be expected negotiations regarding, or provide any non-public information or data to lead to a any Person relating to, any Competing Transaction; provided, (iii) agree tohowever, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision Section 5.12(a)(i) above, third parties may continue to conduct due diligence and Sellers and RMST shall be permitted to provide access to their online data room and negotiate customary confidentiality agreements with other interested buyers for purposes of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any being competing bidders for the Transferred Assets. Until the entry of the foregoing. The Company acknowledges Bidding Procedures Order, Sellers and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company RMST shall promptly (and and, in any event event, within 48 forty-eight (48) hours) notify Parent in writing, after the receipt by the Company, Purchaser if any written proposals or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) offers with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company are received by it or any of their Affiliates or its Subsidiaries or for access to their respective Representatives indicating, in connection with such notice, the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the material terms and conditions of any such proposals or offers but not the name of the offeror (including, if any) of such proposed Competing Transactionapplicable, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by requests, proposals or offers, including proposed agreements, in each case with the Company in connection with any name of the foregoing. The Company agrees that it such offeror and other identifying details redacted) and thereafter shall keep Parent reasonably informed Purchaser informed, on a current basis, of the status and material details terms of any such proposals or offers (including discussions with respect to or any material amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meetingthereto).
(cb) Notwithstanding anything Other than to the contrary extent expressly permitted by and in Section 7.03(a)accordance with the Bidding Procedures, at any time prior to from and after the receipt of date the Company Shareholder ApprovalBidding Procedures Order is entered by the Bankruptcy Court until the date that the auction is declared closed by Sellers and RMST, the Company maySellers and RMST will not, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information will not permit their Affiliates or their respective Representatives to, and enter into discussions directly or indirectly, (i) initiate contact with, a or solicit or encourage submission of any inquiries, proposals or offers by, any Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or enter into discussions with such data to any Person prior to taking any such actionrelating to, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction. For the avoidance of doubt, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing TransactionSellers and RMST will not, (D) fail to include the Company Recommendation in the Proxy Statementand will not permit their Affiliates to, (E) enter into any letter of intent, memorandum of understanding pursue or similar document or Contract relating agree to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into as expressly permitted by and in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”)Bidding Procedures.
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Sources: Asset Purchase Agreement (Premier Exhibitions, Inc.)
Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives willshall not, and that it will cause each of its Subsidiaries and each of shall not permit or authorize the Company's subsidiaries, its and its Subsidiaries’ Representatives their officers, directors, employees, controlled affiliates, agents or other representatives (including without limitation any investment banker, financial advisor, attorney or account accountant retained by the Company it or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not tosubsidiaries), directly or indirectly, (i) solicitto initiate, initiate solicit or knowingly encourage (including by way of furnishing nonpublic informationinformation or assistance), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect relating to, or that may reasonably be expected to lead to, any Competing Alternative Transaction, or enter into discussions (iiexcept as to the existence of these provisions) enter into, maintain, continue or otherwise engage or participate in negotiate with any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing an Alternative Transaction, (iii) or agree to, approve, or endorse, recommend, execute, enter into or consummate any Competing Alternative Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take notify (within 24 hours after the Company attains knowledge thereof) Parent of all action reasonably necessary relevant terms of any such inquiries or proposals received by the Company or by any subsidiary or by any such officer, director, employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to terminate any of such matters and if such inquiry or proposal is in writing, the Company shall deliver or cause to be terminated delivered (within 24 hours of receipt) to Parent a copy of such inquiry or proposal and update Parent (within 24 hours of receipt) as to any such waiver previously granted material changes (and provide Parent with copies of same if in writing) with respect to any provision of such inquiry or proposal, it being understood that Parent shall hold any such confidentiality, standstill inquiry or similar agreement proposal or Takeover Statute and term confidential pursuant to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any the terms of the foregoing. The Company acknowledges and agrees Confidentiality Agreement; provided, however, that nothing contained in this subsection (a) shall prohibit the doing board of any directors of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any subsidiaries, and each of their Representatives with respect to a Competing Transaction. Except for officers, directors, employees, affiliates, agents or other representatives (including without limitation any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c)investment banker, the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4financial advisor, 2013 in connection with such Person’s consideration of acquiring (whether attorney or accountant retained by merger, acquisition of share or assets or otherwise) the Company it or any of its Subsidiariessubsidiaries) from (i) furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any persons or entity in connection with an unsolicited bona fide proposal in writing by such person or entity relating to an Alternative Transaction if, and only to the extent that (A) the board of directors of the Company determines in good faith, after consultation with and taking into account advice of its outside legal counsel, that such action is necessary to comply with its fiduciary duties under Delaware law, (B) such action is in response to an unsolicited bona fide written proposal made by a third party relating to an Alternative Transaction on terms that the Company's board of directors believes, after consultation with and taking into account advice from the Company's financial advisor and outside legal counsel to be more favorable to the Company's stockholders than the Company Merger or may reasonably be expected to result in an Alternative Transaction on terms that the Company's board of directors believes taking into account advice from the Company's financial advisor and outside legal counsel would be more favorable to the Company's stockholders than the Company Merger, and in each case (I) any amount of financing, to return the extent required, is (in the good faith judgment of the Company's board of directors, after consultation with the Company's financial advisors and outside legal counsel) then reasonably certain of being obtained on a timely basis, (II) there is no condition to closing such Alternative Transaction relating to the performance or completion of due diligence (it being understood that customary closing conditions relating to the accuracy of representations and warranties shall not be deemed to be such a condition) with respect to the Company by such third party, and (III) such Alternative Transaction is for more than 50% of the voting power of the voting securities of the Company then outstanding or all or substantially all of the assets of the Company and its subsidiaries, taken as a whole (a "SUPERIOR PROPOSAL"), and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity the Company (x) provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (y) the Company receives from such person or entity an executed confidentiality agreement with terms no less restrictive than those contained in the Confidentiality Agreement; (ii) complying with Rule 14e-2 promulgated under the Exchange Act or from making any legally required disclosure to stockholders with regard to an Alternative Transaction; provided, however, that neither Company nor its Board of Directors nor any committee thereof shall, except in the event that such Alternative Transaction constitutes a Superior Proposal, withdraw, qualify, or modify, or propose to withdraw, qualify or modify, its position with respect to the Company Merger or this Agreement or approve or recommend, or propose to approve or recommend an Alternative Transaction; or (iii) in the event of a Superior Proposal, to enter into an agreement or understanding with respect to the Superior Proposal; provided, however, that if permitted by Parent proposes to amend this Agreement after receipt of a notice described under Section 6.03(c) below, the applicable confidentiality board of directors of the Company shall consider such proposed amendments and shall not enter into any agreement regarding such Alternative Transaction unless it has provided the Parent with written notice, at least twenty-four (24) hours in advance of entering into such agreement, destroy) all information required to be returned (or, if applicable, destroyed) by which notice shall indicate that the board of directors has reconfirmed its view that such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soAlternative Transaction remains a Superior Proposal.
(b) The Company shall promptly immediately cease and cause to be terminated any existing discussions or negotiations with any parties (and in any event within 48 hoursother than Parent) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) conducted heretofore with respect to a Competing any Alternative Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it not to release any third party from any confidentiality or standstill agreement to which the Company is a party.
(c) In addition to the foregoing, the Company shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 forty-eight (48) hours prior written notice (or such lesser prior written notice as provided to the members of the Company's board of directors but in no event less than eight (8) hours) of any meeting of the Company Board or the Special Committee Company's board of directors at which the Company Board or the Special Committee Company's board of directors is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (Bii) provide Parent with at least five (5) business days prior written notice (or such lesser prior notice as provided to the failure to furnish such information to, or enter into such discussions with, members of the Person who made such proposal or offer would Company's board of directors but in no event less than forty-eight (48) hours) of any meeting of the Company's board of directors at which the Company's board of directors is reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice recommend a Superior Proposal to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreementstockholders.
(d) Except as In addition to the obligations of the Company set forth in this Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub6.03, the Company Recommendation shall advise Parent (within 48 hours of receipt) orally and in writing of any request received by the Company for nonpublic information which the Company reasonably believes would lead to an Alternative Transaction or of any Alternative Transaction, or any inquiry received by the Company with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include that the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating reasonably should believe would lead to any Competing Alternative Transaction or inquiry, and the identity of the person or group making any such request, Alternative Transaction or inquiry. The Company will update Parent (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)within 24 hours thereof) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating as to any Competing material changes with respect to such request, Alternative Transaction (an “Alternative Acquisition Agreement”)or inquiry.
(e) Notwithstanding anything The Company shall use commercially reasonable efforts to ensure that the contrary contained hereinofficers, at any time prior to the receipt directors and employees of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking each subsidiary and any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, investment banker or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 advisor or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement representative retained by the Company that describes are aware of the Company’s receipt of a Competing Transaction and the operation of restrictions described in this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation)Section.
Appears in 1 contract
Competing Transactions. (a) The Company agrees that from During the date Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of this Agreement until the Effective Time ortransactions contemplated hereby, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives willeach Party shall not, and that it will shall cause each its Representatives to not, without the prior written consent of its Subsidiaries BIG and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not toHightimes, directly or indirectly, (i) solicit, assist, initiate or knowingly encourage (including by way of furnishing nonpublic information)facilitate the making, submission or announcement of, or take any other action to knowingly facilitateintentionally encourage, any inquiries Acquisition Proposal, (ii) furnish any non-public information regarding such Party or the making of its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any proposal Person or offer group (including without limitation other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any proposal Person or offer to the Company’s shareholders) group with respect to, or that may reasonably could be expected to lead to, any Competing Transactionan Acquisition Proposal, (iiiv) enter intoapprove, maintain, continue endorse or otherwise engage or participate in any discussions or negotiations withrecommend, or provide any non-public information publicly propose to approve, endorse or data concerning the Company or any Subsidiary torecommend, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionAcquisition Proposal, (iiiv) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger negotiate or enter into any letter of intent, Contract agreement in principle, acquisition agreement or commitment contemplating or otherwise relating other similar agreement related to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement)Acquisition Proposal, or (vvi) resolve, propose or agreerelease any third Person from, or authorize or permit waive any Representativeprovision of, any confidentiality agreement to do which such Person is a party. Each Party shall notify the other Parties as promptly as practicable (and in any event within 48 hours) orally and in writing of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing receipt by any of its Subsidiaries or any Representative of the Company such Party or any of its Subsidiaries Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if verbal) and the identity of the Person making such inquiry, proposal, offer or request for information. Each Party shall be deemed to be a breach by keep BIG and Hightimes promptly informed of the Company status of this Section 7.03(a)any such inquiries, proposals, offers or requests for information. The Company During the Interim Period, each Party shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing any solicitations, discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives Person with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Acquisition Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiatedshall, and shall have caused direct its Representatives to negotiateto, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”)cease and terminate any such solicitations, with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation discussions or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent)negotiations.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Competing Transactions. (a) The At any time prior to the receipt of the Requisite Company agrees Vote, the Company and its Representatives may, subject to Section 6.04(b) and under the direction of the Special Committee, take the following actions:
(i) initiate, solicit and encourage proposals from Third Parties relating to any direct or indirect acquisition or purchase of all, but not part, of the Company, any tender offer or exchange offer that if consummated would result in any person or group of persons beneficially owning all, but not part, of the Company, or any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, equity infusion or similar transaction involving the Company that would, in each case, result in all shareholders of the Company (including the Rollover Shareholders) receiving cash consideration;
(ii) contact the person who has made any proposal or offer of a Competing Transaction to clarify and understand the terms and conditions thereof;
(iii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the date person so requesting such information an executed Acceptable Confidentiality Agreement, provided that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iv) enter into and maintain discussions or negotiations with respect to a proposal for a Competing Transaction or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiation; provided, that prior to taking any actions described in clause (iii) or (iv) above, the Special Committee has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of this Agreement until such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, and (C) provided written notice to Parent at least three (3) Business Days prior to taking any such action.
(b) Until the earlier of the Effective Time or, if earlier, the and termination of this Agreement in accordance with pursuant to Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its SubsidiariesVIII, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, shall:
(i) solicitpromptly notify Parent orally and in writing if (A) it determines to initiate actions soliciting or otherwise concerning a proposal, initiate offer, inquiry, contact or knowingly encourage request or (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or B) the making Company becomes aware of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect tooffer, or that may reasonably be expected to lead toany inquiry or contact with any person, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to regarding a Competing Transaction or any proposal or offer that may could reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.;
(bii) The Company shall notify Parent as promptly as practicable (and in any event within 48 hourstwenty-four (24) notify Parent hours after the Company has knowledge thereof), orally and in writing, after specifying (x) the receipt by the Companymaterial terms and conditions thereof (including material amendments or proposed material amendments) and providing, any or its Subsidiaries or any of their respective Representatives if applicable, copies of any proposalwritten requests, inquiry, offer proposals or request (or any amendment thereto) with respect to a Competing Transactionoffers, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the businessproposed agreements, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate (y) the identity of the Person party making such proposal, inquiry, proposal or offer or request and a description of such proposal, inquiry, offer inquiry or request, including the terms and conditions (if any) of such proposed Competing Transactioncontact, and (z) whether the Company shall promptly has any intention to provide confidential information to such person;
(iii) keep Parent informed, on a reasonably current basis (and in any event within 48 twelve (12) hours after receipt by of the Company) provide to Parent copies occurrence of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed material changes, developments, discussions or negotiations) of the status and material details terms of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, offer, inquiry, offer contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (iiincluding the material terms and conditions thereof);
(iv) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours hours’ prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee Committee, as applicable, is reasonably expected to consider any proposalCompeting Transaction; and
(v) refrain from, inquiryand shall cause its Subsidiaries to refrain from, offer or request entering into any confidentiality agreement with respect thereto (or any lesser advance notice otherwise provided Third Party subsequent to members the date of this Agreement which prohibits the Company Board or Special Committee in respect of from providing such meeting)information to Parent.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e6.04(d), neither the Company Board nor any committee thereof shall shall:
(i) (A) withhold, withdraw (or not continue fail to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, include the Company Recommendation with respect to in the MergerProxy Statement, (B) adopt, approve or recommend recommend, or publicly propose to adopt, approve or recommend (publicly or otherwise) any to the shareholders of the Company, a Competing Transaction, (C) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, (x) fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer), provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d−9(f) of the Exchange Act or a statement that the Company Board has received and is currently evaluating such Competing Transaction shall not be prohibited), or (y) fail to publicly reaffirm the Company Recommendation, in each case of (x) and (y) within two (2) Business Days after Parent so requests in writing, (D) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, or (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F)of the foregoing, a “Change in the Company Recommendation”) or ), or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition binding letter of intent, memorandum of understanding, agreement in principle, merger agreement, merger acquisition agreement or other or similar definitive agreement (document or Contract with respect to any Competing Transaction other than an Acceptable Confidentiality AgreementAgreement entered into in compliance with this Section 6.04(a) relating to any Competing Transaction and Section 6.04(b) (an “Alternative Acquisition Agreement”).
(ed) Notwithstanding anything Prior to the contrary contained herein, at any time prior termination of this Agreement pursuant to the receipt of the Company Shareholder ApprovalArticle VIII, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or Recommendation if:
(yi) if the Company has received an unsolicited, written, a bona fide written proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment upon the unanimous recommendation of the Special Committee (after having received the advice of a consultation with its financial advisor of internationally recognized reputation and of outside legal counsel) ), that such proposal or offer constitutes a Superior Proposal, effect Proposal and failure to make a Change in the Company Recommendation or authorize the Company with respect to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to Superior Proposal would be inconsistent with the Company Board’s its fiduciary duties under applicable law applicable Law, ;
(Bii) the Company shall have provided complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer;
(iii) after (A) providing at least ten (10) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “7.03 NoticeNotice of Superior Proposal”) advising Parent that the Company Board is prepared has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or authorize may intend) to do so, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b)Recommendation, (CB) the Company shall have negotiatednegotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its their respective Representatives in good faith (to the extent that Parent desires to negotiate), ) to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation Third Party proposal or (2) in the case of a Competing Transaction that was determined offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any adjustments with respect hereto (to the extent Parent desires to make such Competing Transaction ceases to constitute a Superior Proposal (presentation); provided that any material amendment modifications to such Third Party proposal or offer that the terms of such Competing Transaction during the Notice Period Company Board has determined to be a Superior Proposal shall require be deemed a new 7.03 Notice from Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04, provided, further, that with respect to the terms of such amended Competing Transaction and an additional new written notice to Parent, the Superior Proposal Notice Period that satisfies this Section 7.03(e)), and shall be deemed to be an eight (D8) Business Day period rather than the ten (10) Business Day period first described above; and
(iv) following the end of the Notice Periodsuch ten (10) Business Day period or eight (8) Business Day period (as applicable), the Company Board (upon the recommendation of the Special Committee) shall have determined determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (after having received the advice of a consultation with its financial advisor of internationally recognized reputation and outside legal counsel) ), that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all any changes to this Agreement proposed by Parent) Parent and (2) Merger Sub in response to the case Notice of a Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction that was determined giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(fe) Nothing contained in this Section 7.03 6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under United States U.S. federal or state Law, or other applicable Laws, non-U.S. Law with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange ActAct (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, however, provided that if any such disclosure includes (other than a Change in “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Recommendation Board has received and is currently evaluating such Competing Transaction) that is not an express rejection of any applicable Competing Transaction or has an express reaffirmation of its recommendation in favor of the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure transactions contemplated by this Agreement shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect theretoRecommendation, or (ii) making any “stop, look or -look-and-listen” communication that contains only of the information set forth in type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed Act.
(f) Irrespective of whether there is a Change in Company Recommendation under Section 6.04(d), prior to the termination of this Agreement pursuant to Article VIII, the Company Recommendation shall not submit to the vote of its Shareholders any Competing Transaction or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation)enter into any Alternative Acquisition Agreement.
Appears in 1 contract
Competing Transactions. (a) The Company agrees that from the date of Except as otherwise set forth in this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IXSection 7.03, neither it the Company nor any of its Subsidiaries shall, nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by shall the Company or any of its Subsidiaries, the Company Board Subsidiaries authorize or the Special Committee or permit any of the Company’s Subsidiaries) not their respective Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic any non-public information), or take any other action to knowingly facilitate, any inquiries or indication of interest or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any a Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity of its Subsidiaries in furtherance of such inquiries or indication of interest or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionTransaction (other than to state that the Company is not permitted to have such discussions), (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer with respect to or that may reasonably be expected to lead to to, a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger Merger, or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentialitystandstill, standstill confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentialityconfidentiality or standstill agreement or Takeover Statute). Upon execution of this Agreement, standstill the Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the date of this Agreement by the Company with respect to a Competing Transaction and deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Competing Transaction, effective on and from the date hereof. The Company shall promptly request each Person that has heretofore executed a standstill, confidentiality or similar agreement in connection with such Person’s consideration of a Competing Transaction to return (or Takeover Statute and if permitted by the applicable agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable agreement and, if requested by Parent, to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, Person’s obligation to do any of the foregoingso. The Company acknowledges and agrees that the doing of any violation of the foregoing restrictions on the Company set forth in this Section 7.03(a) by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). .
(b) The Company shallshall as promptly as reasonably practicable (and in any event, and shall cause its Subsidiaries and its Subsidiaries’ Representatives towithin 48 hours after the Company attains knowledge thereof) notify Parent, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to after the execution of this Agreement receipt by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, indication of interest, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any written request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, indication of interest, inquiry, offer or request and a description of such proposal, indication of interest, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall as promptly as reasonably practicable (and in any event event, within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent fully informed on a reasonably informed current basis of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, indication of interest, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior written notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting). The Company agrees that it shall as promptly as reasonably practicable (and in any event, within 48 hours) provide to Parent any information concerning the Company that may be made available pursuant to Section 7.03(c) to any other Person in response to any such proposal, indication of interest, inquiry, offer or request (or any amendment thereto) which was not previously provided to Parent.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, (i) following receipt by the Company of a written bona fide proposal or offer from any Person with respect to a Competing Transaction that did not result from a material breach of Section 7.03(a), the Company and its Representatives may contact such Person solely in order to (A) clarify and understand the terms and conditions of such proposal or offer so as to determine whether it constitutes or could reasonably be expected to result in a Superior Proposal and (B) notify such Person of the restrictions of this Section 7.03 ; provided that the Company shall keep Parent informed on a reasonably current basis of such contact; and (ii) the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, a written bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any a material breach of this Section 7.03 7.03(a) if, prior to furnishing such information and or entering into such discussions, the Company Board (after taking into account the recommendation of x) the Special Committee) Committee has (i) determined, in its good faith judgment (after having received the advice of a its independent financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may is reasonably be expected likely to lead toresult in, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Lawthe Laws of the Cayman Islands, (iiy) provided the Company promptly provides written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking and discloses (and, if applicable, promptly provides copies of) any such actioninformation to Parent and Merger Sub to the extent not previously provided to Parent and Merger Sub, and (iiiz) the Company has obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company (acting through the Company Board nor or any committee thereof thereof) shall not (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the MergerRecommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (FE), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”). The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(d).
(e) Notwithstanding anything to the contrary contained hereinin Section 7.03(d), at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect make a Change in the Company Recommendation, or Recommendation and/or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement if (yx) if the Company has received an unsolicited, a written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any a material breach of this Section 7.037.03(a), that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a its independent financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or and (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined determines in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to do so would be inconsistent with the Company Board’s its fiduciary duties under applicable law applicable Law, (B) the Company shall have Laws; provided written notice that prior to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect effecting a Change in the Company Recommendation or authorize the Company to terminate in connection with a Superior Proposal and/or terminating this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement, in each case as permitted by this Section 7.03(e), (A) the Company shall have provided written notice to Parent and Merger Sub (a “Notice of Superior Proposal”) advising Parent and Merger Sub that the Company Board has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and/or terminate this Agreement to enter into an Alternative Acquisition Agreement pursuant to Section 9.01(c)(iii) (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event), and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (CB) the Company shall have negotiated, and shall have caused its Representatives to negotiateto, during the five Business Day period following receipt by Parent and Merger Sub of the 7.03 Notice of Superior Proposal (the “Notice Period”), negotiate, with Parent and its Representatives Merger Sub in good faith (to the extent that Parent desires and Merger Sub desire to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction Proposal ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction Superior Proposal during the Notice Period shall require a new 7.03 Notice from the Company with respect to of Superior Proposal of the terms of such amended Competing Transaction Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(e)), and (DC) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a its independent financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case Superior Proposal giving rise to the Notice of an Intervening Event, such Intervening Event Recommendation Change continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state LawLaws of the United States of America, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, provided that if such disclosure includes constitutes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendationunder Section 7.03(d), such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed constitute a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Sources: Merger Agreement (SYSWIN Inc.)
Competing Transactions. (a) The Company agrees that from the date of this Agreement until Upon the Effective Time orTime, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, each Debtor shall and that it will shall cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not toControlled Subsidiaries and its and their respective Representatives to cease immediately and cause to be terminated any and all activities, directly discussions or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take negotiations with any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) Person conducted heretofore with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company an Acquisition Proposal. Each Debtor shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of after the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request Effective Time instruct each Person that which has heretofore executed a confidentiality agreement after September 4relating to an Acquisition Proposal with or for the benefit of such Debtor to promptly return or destroy all information, 2013 in connection with documents, and materials relating to the Acquisition Proposal or to such Person’s consideration of acquiring (whether Debtor or its businesses, operations or affairs heretofore furnished by merger, acquisition of share or assets or otherwise) the Company such Debtor or any of its Subsidiaries, Representatives to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under or any of its Representatives in accordance with the terms of the applicable any confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce with such Person’s obligation to do so.
(b) The Company shall promptly (From and in any event within 48 hours) notify Parent in writing, after the receipt by Effective Time, except as authorized or permitted in Section 5.3(c) below, each Debtor agrees that neither it nor any of the Company’s Controlled Subsidiaries shall, any or and that it shall cause its Subsidiaries or any of and their respective Representatives of any proposalnot to, inquirydirectly or indirectly, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) solicit, initiate, knowingly encourage or facilitate the submission of any such proposal, inquiry, offer or request and (ii) any information requested indication of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposalinterest, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise constitutes (or result from any breach multiple inquiries, indications of this Section 7.03 ifinterest, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) proposals or offers that (A) such proposal or offer constitutescumulatively would constitute), or may reasonably be expected to lead to, an Acquisition Proposal, (ii) participate in or facilitate any discussions or negotiations regarding, or furnish any non-public information to any Person (other than the Buyer Parties) in connection with, an Acquisition Proposal, (iii) enter into any letter of intent or agreement in principle or other agreement related to an Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 5.3(c)) or enter into any agreement or agreement in principle requiring such Debtor to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, or (iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between such Debtor or any of its Controlled Subsidiaries and any Person. Any violation of this Section 5.3 by any Representative of any Debtor or any Controlled Subsidiary or Representative of any Controlled Subsidiary of any Debtor shall constitute a breach hereof by the Debtors.
(c) Notwithstanding Section 5.3(b), from and after the Effective Time and prior to the time, but not after, the Bankruptcy Court shall have entered the Confirmation Order, if (i) no Debtor has breached Section 5.3(b) and (ii) the Company or its Representatives receive an unsolicited bona fide written Acquisition Proposal from a third party that the board of directors of the Company (the “Company Board”) determines in good faith, after consultation with its outside legal counsel, constitutes, or is reasonably likely to lead to, a Superior Proposal Proposal, and (B) the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to furnish take such information to, or enter into such discussions with, the Person who made such proposal or offer action would reasonably be expected to be inconsistent with violate the Company Board’s fiduciary duties under applicable Law, the Company may take the following actions: (i) furnish information to the third party making such Acquisition Proposal (a “Qualified Bidder”), and (ii) provided written notice to Parent of its intent to furnish information engage in discussions or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate negotiations with the Company or having the effect of prohibiting the Company from satisfying Qualified Bidder and its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation Representatives with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement Acquisition Proposal; provided that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or receives from the Qualified Bidder an executed confidentiality agreement (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from which are no less favorable to the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) than those contained in the case of an Intervening Event, such Intervening Event continues to necessitate Confidentiality Agreement and shall include a customary standstill provision that applies during and survives the Change in the Company Recommendation (taking into account all changes proposed by ParentBankruptcy Case) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).and
Appears in 1 contract
Sources: Plan Sponsor Agreement
Competing Transactions. (a) The Company agrees that Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement hereof and continuing until 11:59 p.m. New York City time on the Effective Time or, if earlierdate which is thirty (30) days after the date hereof (the “Go-Shop Period End Date”), the termination of this Agreement in accordance with Article IX, neither it nor any of its Company and the Company Subsidiaries nor any of and their respective Representatives willshall have the right, and that it will cause each acting under the direction of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not toCommittee, to directly or indirectly, indirectly (i) solicitinitiate, initiate solicit or knowingly encourage Competing Transactions (including by way of furnishing nonpublic information)or inquiries, proposals or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or offers that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may could reasonably be expected to lead to a Competing Transaction), (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected including by way of public disclosure and by way of providing access to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating non-public information to any Competing Transaction person (other than any each, a “Solicited Person”) pursuant to one (1) or more Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) Agreements entered into by such Solicited Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within 48 hours) notify Parent in writing, after the receipt by the Company, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and); provided, that the Company shall promptly following its execution, delivered provide to Parent any information concerning the Company or any Company Subsidiary that it has provided to any Solicited Person which was not previously provided to Parent; and (ii) enter into and maintain discussions or negotiations with respect to Competing Transactions (or inquiries, proposals or offers that could reasonably be expected to lead to a Competing Transaction) or otherwise cooperate with, assist or participate in, facilitate, or take any other action in connection with any such inquiries, proposals, discussions or negotiations. Within forty-eight (48) hours following the Go-Shop Period End Date, the Company shall notify Parent of the material terms and conditions of any proposal or offer regarding a Competing Transaction (including any amendments or modifications thereof) received from any Excluded Party (which shall include a copy of the proposal made by such Excluded Party (which copy may be redacted to omit the identity of such Excluded Party) and a summary of any financing material related thereto (if any)). Except as otherwise expressly provided in Section 7.04(c), the Company shall, and the Company shall cause the Company Subsidiaries and its and their Representatives to, (1) immediately cease any activities permitted by the first sentence of this Section 7.04(a), and any discussions with any person (other than Parent and any Excluded Party) that are ongoing as of the Go-Shop Period End Date and that relate to, or could reasonably be expected to lead to, a Competing Transaction, and (2) use its reasonable best efforts to promptly request each person (other than Parent and any Excluded Party) to return or destroy all information required to be returned or destroyed by such person under the terms of the applicable Acceptable Confidentiality Agreement. Except as set forth in Section 7.04(c), immediately after the Go-Shop Period End Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any Company Subsidiary shall, nor shall the Company or any Company Subsidiary authorize or permit any of their respective Representatives to, directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its Stockholders) that relates to, constitutes, or could reasonably be expected to lead to, any Competing Transaction, (B) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information to or otherwise knowingly assist or cooperate with, any person or entity in furtherance of such inquiries, proposals or offers or to obtain a proposal or offer for a Competing Transaction, (C) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or Contract or commitment contemplating or otherwise relating to any Competing Transaction, or (D) release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Following the Go-Shop Period End Date, the Company shall notify Parent in writing, as promptly as reasonably practicable (and in any event within forty-eight (48) hours after the Company has knowledge thereof), of any proposal or offer or any inquiry or contact with any person, regarding a Competing Transaction or that could reasonably be expected to lead to a Competing Transaction, specifying (i) the material terms and conditions thereof (including material amendments or proposed material amendments), and (ii) whether the Company has any intention to provide confidential information to such person. The Company shall keep Parent informed on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request, including the material terms and conditions thereof. Without limiting the foregoing, the Company shall (1) promptly notify Parent in writing if it determines to initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 7.04, and (2) provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee, as applicable, is reasonably expected to consider any inquiry, proposal or offer relating to any Competing Transaction.
(c) Notwithstanding anything to the contrary in this Section 7.04, at any time after the Go-Shop Period End Date and prior to the receipt of the Requisite Company Vote, (i) following receipt by the Company of a written, bona fide inquiry, proposal or offer with respect to a Competing Transaction from any person (provided, that such proposal or offer shall not have been obtained in violation of Section 7.04(a) and the Company shall have complied with the requirements of this Section 7.04 with respect to such proposal or offer), the Company and its Representatives may contact such person solely in order to (1) clarify and understand the terms and conditions of such inquiry, proposal or offer so as to determine whether it constitutes or could reasonably be expected to result in a Superior Proposal and (2) notify such person of the restrictions of this Section 7.04; and (ii) the Company may furnish information to, and enter into discussions or negotiations with, a person who has made a written, bona fide proposal or offer regarding a Competing Transaction, if the Special Committee, which shall have full, sole and exclusive authority to make such a decision, has (A) determined in its good faith judgment (after consultation with its outside financial advisor and outside legal counsel) that such proposal or offer constitutes, or could reasonably be expected to result in, a Superior Proposal, (B) promptly provided written notice to Parent (in any event within forty-eight (48) hours) of its intent to furnish information or enter into discussions or negotiations with such person, and (C) obtained from such person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement); provided, that the Company shall promptly (and, in any event, within forty-eight (48) hours) make available to Parent any material information concerning the Company and the Company Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives. Notwithstanding the foregoing and for the avoidance of doubt, after the Go-Shop Period End Date, the Company and the Company Subsidiaries and their respective Representatives may continue to take any of the actions described in this Section 7.04(c) with respect to any person or group of persons that has made (or, in the case of any group of persons, any one or more members of which has made, either individually or as a member of a group) a proposal or offer regarding a Competing Transaction on or before the Go-Shop Period End Date if the Special Committee determines in good faith (after consultation with its outside financial advisor and outside legal counsel) that, as of the date of the Go-Shop Period End Date, such proposal or offer regarding a Competing Transaction constitutes, or is reasonably likely to lead to, a Superior Proposal (each such person or group of persons, an “Excluded Party”). Any Excluded Party shall cease to be an Excluded Party for all purposes of this Agreement immediately at such time as the offer or proposal with respect to a Competing Transaction made by such person is withdrawn, is terminated or expires, or the Special Committee determines in good faith, that such offer or proposal has ceased to constitute, or is no longer reasonably likely to lead to, a Superior Proposal.
(d) Except as set forth in Section 7.03(e7.04(e) and Section 7.04(f), neither the Company Board nor any committee thereof the Special Committee shall (i) (A) change, withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make)withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, or propose publicly to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the MergerRecommendation, (Bii) adopt, approve or recommend recommend, or propose to adopt, approve or recommend (publicly or otherwise) recommend, any Competing Transaction, (Ciii) fail to make the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iv) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (Fv) take resolve or publicly announce its intention to do any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in of such actions under clauses (Ai) through (F), iv) (any of such actions under clauses (i) through (v) being referred to as a “Change in the Company Recommendation”) or (iivi) authorize, approve or recommend, or cause or permit the Company or any of its the Company Subsidiaries to enter into any letter of intent, acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”). It is agreed that any violation of the restrictions on the Company set forth in this Section 7.04 by any of the Company Subsidiaries of any of its or their respective Representatives shall be deemed to be a breach of this Section 7.04 by the Company.
(e) Notwithstanding anything to the contrary contained hereinin Section 7.04(d), at any time prior to the receipt time of the Company Shareholder ApprovalStockholders’ Meeting, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, a bona fide written offer or proposal or offer with respect to regarding a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of a Special Committee has consulted with its outside financial advisor of internationally recognized reputation and of outside legal counsel) ), constitutes a Superior Proposal, effect the Company Board may, upon recommendation of the Special Committee (after the Special Committee has consulted with its outside financial advisor and outside legal counsel), make a Change in the Company Recommendation or and/or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement9.03(c); provided, that prior to taking any action contemplated by clause (xi) or (y) of the Company shall have complied with its obligations under this Section 7.03(e), 7.04; (ii) the Company shall have (A) provided at least five (5) Business Days’ (the “Notice Period”) prior written notice to Parent advising Parent that the Company Board has received a Superior Proposal (which notice shall include a copy of the Superior Proposal, the identity of the person making such Superior Proposal and a summary of any financing materials related thereto (if any)) and indicating that the Company Board intends to effect a Change in the Company Recommendation and /or authorize the Company to terminate this Agreement pursuant to Section 9.03(c), and (B) during the Notice Period, if requested by Parent, negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith to make such adjustments in the terms and conditions of this Agreement, so that such offer or proposal would cease to constitute a Superior Proposal; provided, that any material modifications to such Superior Proposal require a new written notice to Parent of the terms of such amended Superior Proposal from the Company and an additional Notice Period (which shall be a three (3) Business Day period rather than the five (5) Business Day period prescribed above in the event of modifications to a Superior Proposal as to which the Company has already delivered a notice to Parent pursuant to this Section 7.04(e) at least five (5) Business Days prior to delivery of such new notice); and (iii) following the end of the Notice Period (or any additional Notice Period, if applicable), the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee) shall have determined in its good faith judgment Committee (after having received the advice of Special Committee has consulted with its outside financial advisor and outside legal counsel), that such offer or proposal continues to constitute a Superior Proposal.
(f) Notwithstanding anything to the contrary in Section 7.04(d), prior to the time of the Stockholders’ Meeting, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after the Special Committee has consulted with its outside financial advisor and outside legal counsel), that an Intervening Event has occurred and is continuing and that failure to take effect a Change in the Company Recommendation in response to such action could Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon recommendation of the Special Committee (after the Special Committee has consulted with its outside legal counsel), make a Change in the Company Recommendation in response to such Intervening Event; provided, that (i) the Company shall have (A) provided at least five (5) Business Days’ prior written notice to Parent advising Parent that an Intervening Event has occurred and is continuing (which notice shall include the circumstances of such Intervening Event in reasonable detail) and indicating that the Company Board intends to effect a Change in the Company Recommendation in response to such Intervening Event, and (B) during such five (5) Business Day period, if requested by Parent, negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith to make such adjustments in the terms and conditions of this Agreement, so that the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after the Special Committee has consulted with its outside legal counsel), that it would no longer be inconsistent with the Company Board’s fiduciary duties not to effect a Change in the Company Recommendation; and (ii) following the end of such five (5) Business Day period, the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after the Special Committee has consulted with its outside legal counsel), that failure to effect a Change in the Company Recommendation in response to such Intervening Event would continue to be reasonably expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent).
(fg) Nothing contained in this Section 7.03 7.04 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Lawissuing a “stop, or other applicable Laws, with regard look and listen” communication pursuant to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a14d-9(f) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation Act or has the substantive effect of withdrawing taking or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Competing Transactions. (a) The Company agrees that from During the date of this Agreement until the Effective Time orPre-Closing Period, if earlierSeller shall not, the termination of this Agreement in accordance with Article IX, neither it nor any of shall cause its Subsidiaries nor any of their respective Representatives willcontrolled Affiliates not to, and that it will shall use its commercially reasonable efforts to cause each of its Subsidiaries representatives, officers, directors and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) agents not to, directly or indirectly, (ia) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making submission of any proposal or offer from any third-party (including without limitation other than Buyer and its Affiliates) for the acquisition of the Business or any proposal material portion of the Business or offer Acquired Assets (other than sales of inventory or the grant of non-exclusive licenses to use products of the Company’s shareholdersBusiness in the ordinary course of business) with respect to, or that may reasonably be expected to lead to, any Competing Transaction(an “Acquisition Proposal”), (iib) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations withother than with Buyer, Seller and their respective representatives, officers, directors, employees and agents regarding an Acquisition Proposal, (c) furnish any confidential information regarding the Business or provide the Acquired Assets to any nonthird-public information party in connection with an Acquisition Proposal or data concerning the Company or (d) enter into a confidentiality agreement with any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer third-party with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transactionan Acquisition Proposal. Seller shall notify Buyer promptly, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within 48 hours, if any third-party makes an Acquisition Proposal during the Pre-Closing Period (including the terms thereof and the identity of such third-party, subject to any existing applicable confidentiality agreement or applicable legal requirement). Seller shall, and shall cause its controlled Affiliates to, and shall use commercially reasonable efforts to cause its and its controlled Affiliates’ representatives to (x) notify Parent in writingas of the date hereof, after the receipt by the Companyimmediately cease any existing solicitations, any or its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees third-party (other than Buyer and its Affiliates) that it shall keep Parent reasonably informed of the status and material details of (including discussions with respect to is interested in, or amendments or proposed amendments to) (i) has indicated any such proposalinterest regarding, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 7.03(c). The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meeting).
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) any transaction that (A) such proposal or offer constitutes, or may could reasonably be expected to lead to, a Superior to an Acquisition Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (E) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than Buyer or its Affiliates) and (y) request the prompt return or destruction of any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) or (F) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries confidential information provided to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary contained herein, at any time such third-party prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and of outside legal counsel) constitutes a Superior Proposal, effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, that prior to taking any action contemplated by clause (x) or (y) of this Section 7.03(e), (A) the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of outside legal counsel), that the failure to take such action could reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable law applicable Law, (B) the Company shall have provided written notice to Parent (a “7.03 Notice”) advising Parent that the Company Board is prepared to effect a Change in the Company Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transaction, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b), (C) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following receipt by Parent of the 7.03 Notice (the “Notice Period”), with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate), to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction during the Notice Period shall require a new 7.03 Notice from the Company with respect to the terms of such amended Competing Transaction and an additional Notice Period that satisfies this Section 7.03(e)), and (D) following the end of the Notice Period, the Company Board (upon the recommendation of the Special Committee) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent)date hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Sources: Asset Purchase Agreement (Houghton Mifflin Harcourt Co)
Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance with the intent to induce the making of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionTransaction , or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement)Merger, (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar confidentiality agreement or Takeover Statutes (and the Company shall promptly take all action reasonably steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, confidentiality or standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreementStatute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries Subsidiaries, and shall use commercially reasonable efforts to cause its and its Subsidiaries’ Representatives to, immediately promptly cease and cause to be terminated all existing discussions or negotiations with any Persons (other than the Buyer Group Parties) conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the The Company shall promptly request each Person (other than the Buyer Group Parties) that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soagreement.
(b) The Company shall promptly (and in any event within 48 hours24 hours after the Company attains knowledge thereof) notify Parent Parent, in writing, after the receipt by the Company, any or of its Subsidiaries or any of their respective Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Transaction, Transaction including any request for discussions or negotiations and any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a reasonable description of such proposal, inquiry, offer or request, including the material terms and conditions (if any) of such proposed Competing Transaction, and the Company shall promptly (and in any event within 48 hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed informed, on a reasonably current basis, of the status and material details changes in terms of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any material non-public information requested of or provided by the Company pursuant to Section 7.03(c). The Company agrees that it shall promptly provide to Parent with at least 48 hours prior notice of any meeting of nonpublic information concerning the Company Board or the Special Committee at which the Company Board or the Special Committee is reasonably expected that may be made available pursuant to consider Section 7.03(c) to any other Person in response to any such proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Company Board or Special Committee in respect of such meetingamendment thereto).
(c) Notwithstanding anything to the contrary in Section 7.03(a) (but subject to Section 7.03(b)), at any time prior to the receipt of the Company Shareholder Approval, the Company Company, its Subsidiaries and their respective Representatives may, subject to compliance with this Section 7.03(c) and acting under the direction of the Company Board, upon the recommendation of the Special Committee, furnish information (including any non-public information or data concerning the Company or any of its Subsidiaries) to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Company Board (after taking into account the recommendation of the Special Committee) has (i) determined, in its good faith judgment (after having received the advice of a consultation with its financial advisor of internationally recognized reputation and of outside legal counsel) that (A) such proposal or offer constitutes, or may would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the Company and/or its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least two (2) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly following immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material non-public information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives.
(d) Except as set forth in this Section 7.03(e7.03(d), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make)withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in each case in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction, (C) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Competing Transaction, (D) fail to include the Company Recommendation in the Proxy Statement, (ED) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)), (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) take any other action or make any other public statement that is would reasonably be expected to be inconsistent with the Company Recommendation (any action described in clauses (A) through (F), a “Change in the Company Recommendation”” (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act, shall not be deemed a Change in the Company Recommendation) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement) relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)) (an “Alternative Acquisition Agreement”).
(e) . Notwithstanding anything to the contrary contained hereinforegoing, if at any time prior to the receipt of the Company Shareholder Approval, the Company Board (upon the recommendation of the Special Committee) may (x) if an Intervening Event has occurred, effect a Change in the Company Recommendation, or (y) if the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon the recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a consultation with its financial advisor of internationally recognized reputation and of outside legal counsel) constitutes constitutes, or would reasonably be expected to lead to, a Superior Proposal, effect the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, (1) make a Change in the Company Recommendation or Recommendation, and/or (2) authorize the Company to terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement; provided, however, that prior the Company Board shall not be entitled to taking any action contemplated by clause (x) exercise its right to make a Change in the Company Recommendation or (y) of terminate this Agreement and enter into an Alternative Acquisition Agreement, as applicable, pursuant to this Section 7.03(e)7.03(d) unless:
(1) with respect to a Change in Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, (A) the Company Board (upon the recommendation of the Special Committee) shall have determined determines in its good faith judgment (after having received the advice of consultation with its financial advisor and outside legal counsel), that the failure to take such action could reasonably be expected to do so would be inconsistent with its fiduciary duties to the Company Board’s fiduciary duties and/or its shareholders under applicable law applicable Law, ;
(B2) prior to effecting a Change in the Company shall have Recommendation and/or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “7.03 NoticeNotice of Superior Proposal”) advising Parent that the Company Board is prepared has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to effect make a Change in the Company Recommendation or authorize the Company to and/or terminate this Agreement pursuant to Section 9.01(c)(iii) to enter into an Alternative Acquisition Agreement (as applicable) and (1) the manner in the case of an Intervening Event, providing a reasonably detailed description of the Intervening Event, and (2) in the case of a Competing Transactionwhich it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b); and
(3) Parent does not, within five (C5) the Company shall have negotiated, and shall have caused its Representatives to negotiate, during the five Business Day period following Days of receipt by Parent of the 7.03 Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after consultation with Parent its financial advisor and its Representatives outside legal counsel, to be at least as favorable to the Company’s shareholders as such Superior Proposal; provided, however, that during the Notice Period the Company shall reasonably negotiate in good faith with Parent (to the extent that Parent desires to so negotiate)) regarding any Revised Transaction Proposal; provided, to make such adjustments in the terms and conditions of this Agreementfurther, the Financing Commitments and the Alternative Facility Agreement so that (1) in the case of an Intervening Event, such Intervening Event no longer requires a Change in the Company Recommendation or (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction ceases to constitute a Superior Proposal (provided that any material amendment to the terms of such Competing Transaction Superior Proposal during the Notice Period shall require the Company to deliver a new 7.03 Notice from the Company with respect to written notice of the terms of such amended Competing Transaction Superior Proposal and an additional comply again with the requirements of this Section 7.03(d)(3) with respect to such new written notice; provided, further that with respect to the new written notice to Parent, the Notice Period that satisfies this Section 7.03(e)), and shall be deemed to be a three (D3) following Business Day period rather than the end of the Notice Period, the Company Board five (upon the recommendation of the Special Committee5) shall have determined in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (1) in the case of an Intervening Event, such Intervening Event continues to necessitate the Change in the Company Recommendation (taking into account all changes proposed by Parent) and (2) in the case of a Competing Transaction that was determined to constitute a Superior Proposal, such Competing Transaction continues to constitute a Superior Proposal (taking into account all changes proposed by Parent)Business Day period first described above.
(fe) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Sources: Merger Agreement (SKY-MOBI LTD)