Competing Transactions. Nothing contained in this Agreement shall prohibit the Company (upon the recommendation of the Independent Committee) from, prior to the date of the Stockholder'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 Levy Acquisition Co. 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 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. 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 shares of Company Common Stock then outstanding or all or substantially all of the assets of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common 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 in the Merger, (ii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditions, and (iv) has not been obtained by or on behalf of the Company in violation of this Section 4.3.
Appears in 2 contracts
Sources: Merger Agreement (Loeb Partners Corp), Merger Agreement (Oriole Homes Corp)
Competing Transactions. Nothing contained in From the date of this Agreement shall prohibit to the Effective Date or earlier termination of this Agreement, the Company shall not make a public announcement that it intends to support or supports, enter into an agreement to support, or file any pleading or document with the Bankruptcy Court evidencing its intention to support, or otherwise knowingly support, any transaction inconsistent with this Agreement or the Plan, shall not file any plan that is not the Plan and shall not agree to, consent to, knowingly provide any support to, solicit, participate in the formulation of, or vote for any transaction or plan of reorganization other than the Plan (upon a “Competing Transaction”). Notwithstanding anything to the recommendation of contrary herein, or in the Independent Committee) fromPlan or any other agreement among the Company and the Backstop Parties, at any time prior to the date of on which the Stockholder's Meeting (i) furnishing information toPlan is confirmed by the Bankruptcy Court, or entering into discussions or negotiations with, any person that makes an unsolicited written, if the Company has received a bona fide written proposal to the Company with respect to for a Competing Transaction which that the board of directors of the Company determines in good faith is or could reasonably be expected to lead to a Superior Transaction and that the failure of the board to pursue such Competing Transaction could reasonably be expected to result in a Superior Proposal, if, (A) breach of the failure to take such action would be inconsistent with the Board's and the Independent Committee's board of directors’ fiduciary duties to the Company's stockholders under applicable law, and then the Company may (Ba) prior to furnishing such furnish non-public information to, or entering into and engage in discussions or and negotiations with, the person making such person, the Company (x) provides reasonable notice to Levy Acquisition Co. to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person proposal 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 representatives with respect to a the Competing Transaction which could reasonably be expected Transaction, and (b) terminate this Agreement pursuant to result Section 12(d) in order to enter into a Superior Proposal, following the receipt of such a proposal, if 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company Transaction or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any an agreement to engage in any of the foregoingsupport a Superior Transaction. For purposes of this Agreement, "a “Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting Transaction” shall be a Competing Transaction that the board of cash and/or securities, all directors of the shares of Company Common Stock then outstanding or all or substantially all of determines in good faith (x) would be in the assets best interests of the Company and its creditor constituencies and equity holders as a whole, including, but not limited to the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common 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 in the Merger, (ii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditionsBackstop Parties, and (ivy) has would reasonably be expected to provide a superior recovery (but, with respect to any creditor constituent, not been obtained by or on behalf in excess of its claim) to each class of creditor constituencies and equity holders. At all times, the Company in violation shall be obligated to promptly deliver to the advisors for the Backstop Parties all written communications delivered to or received by the Company or its advisors making or materially modifying any proposals with respect to any Competing Transaction, including, without limitation, copies of this Section 4.3all expressions of interest, term sheets, letters of interest, offers, proposed agreements or otherwise, and shall periodically update (not less than once every week) the advisors for the Backstop Parties concerning such matters.
Appears in 2 contracts
Sources: Equity Commitment Agreement (Tronox Inc), Equity Commitment Agreement
Competing Transactions. Nothing contained in this Agreement shall prohibit the Company (upon the recommendation of the Independent Committeea) fromNotwithstanding any other provision hereof, prior to the date Measurement Date, the Company may solicit, engage in discussions regarding or encourage the solicitation of Competing Transactions involving higher or better competing bids in accordance with the terms of this Section 6.2. Without limiting the generality or effect of the Stockholderforegoing, the Company may furnish information to any Person other than Parent or Purchaser (a "Third Party") (and its Representatives) in response to such Third Party's Meeting (i) furnishing information to, or entering into written proposal regarding a Competing Transaction and engage in discussions or negotiations with, with a Third Party (and its Representatives) relating to any person that makes an unsolicited written, bona fide such proposal to if the Company determines in good faith and consistent with respect to a its fiduciary duties (after consultation with outside counsel) that such Competing Transaction which could is 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, Competing Transaction that the Company (x) provides reasonable notice to Levy Acquisition Co. 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 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. 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 shares of Company Common Stock then outstanding or all or substantially all of the assets of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common Stock with per share consideration that the Independent Committee determines in good faith, after receipt of advice of consulting in good faith with the Professionals for the First-Lien Debtholders and Second-Lien Debtholders, to be a higher or better proposal for the Company and its financial advisor, is more favorable from a financial point of view creditors than the consideration transactions with Parent and Purchaser pursuant to the terms of this Agreement and the Plan.
(b) Any Competing Transaction may not be received by deemed a higher or better offer than the transactions with Parent and Purchaser pursuant to the terms of this Agreement and the Plan, and no Debtor may enter into any Contract providing for any Competing Transaction, unless the Competing Transaction:
(i) provides for equal treatment of all holders within each class of Company Common Stock First-Lien Debt (including Purchaser) and Second-Lien Debt (except as any such holder may agree in the Merger, writing in its sole discretion);
(ii) is determined by (A) provides consideration in cash or its indubitable equivalent payable to the Independent Committee First-Lien Debtholders in its good faith judgment, after receipt an amount greater than or equal to the sum of advice of its financial advisor First-Lien Debtholder Cash Amount and outside legal counsel, to the First-Lien Noteholder Amount (such amount shall be likely of being completed (taking into account all legal, financial, regulatory and other aspects calculated in the case of the proposalParent Notes assuming that Purchaser did not contribute the Contributed First-Lien Debt, but received a distribution thereon that was the Person making same in kind and amount as that received by all other First-Lien Debtholders) and (B) provides aggregate consideration in cash or its indubitable equivalent payable to the proposal Second-Lien Debtholders in an amount greater than or equal to the Second-Lien Debtholder Note Amount;
(iii) provides for payment upon consummation of a Competing Transaction or termination of a Competing Transaction Plan or the Contract providing for a Competing Transaction to Purchaser in an amount equal to the Break-Up Fee;
(iv) includes a written offer accompanied by definitive documentation which the Third Party has signed and the expected timing Company has determined it would, subject to complete the proposalterms hereof, be willing to accept, and such offer is binding and irrevocable for not less than ten Business Days without material modification;
(v) is accompanied by written evidence of available cash and such other evidence of ability to consummate the proposed Competing Transaction as the Company may reasonably request; and
(vi) is not subject to any due diligence or financing contingency. For purposes of this Section 6.2 (b), Parent Notes shall be valued as set forth in the Undertaking.
(c) The Company shall keep Parent, Purchaser and the Professionals for the First-Lien Debtholders and Second-Lien Debtholders informed of such inquiries and proposals promptly, and in any event within 48 hours after the initial receipt thereof (including by providing copies of all written inquiries, proposals and offers, including the documentation relating thereto), and may not accept any proposal for a Competing Transaction without giving Parent and Purchaser not less than four Business Days' prior written notice of the material terms thereof (including copies of all written documents providing therefor) and the opportunity to increase the consideration payable under this Agreement in response thereto.
(d) In the event that the Company consummates (A) a Competing Transaction with a Third Party or (B) a transaction with Parent and Purchaser at an amount above the Purchase Price, any consideration above the Purchase Price shall be paid, subject to Sections 6.2(b)(i) and 6.2(b)(ii), (iiix) does notfirst, to the First-Lien Debtholders until the First-Lien Debt has been satisfied in full and (y) second, in the definitive agreementevent that the First-Lien Debt has been satisfied in full, contain any "due diligence" conditions, and (iv) to the Second-Lien Debtholders until the Second-Lien Debt has not been obtained by or on behalf of the Company satisfied in violation of this Section 4.3full.
Appears in 1 contract
Sources: Bankruptcy Agreement
Competing Transactions. Nothing contained in From the date of this Agreement to the Effective Date or earlier termination of this Agreement, Accuride shall prohibit not make a public announcement that it intends to support or supports, enter into an agreement to support, or file any pleading or document with the Company Bankruptcy Court evidencing its intention to support, or otherwise knowingly support, any transaction inconsistent with this Agreement or the Chapter 11 Plan, shall not file any plan that is not the Chapter 11 Plan and shall not agree to, consent to, knowingly provide any support to, solicit, participate in the formulation of, or vote for any transaction or plan of reorganization other than the Chapter 11 Plan (upon a “Competing Transaction”). Notwithstanding anything to the recommendation of contrary herein, or in the Independent Committee) fromChapter 11 Plan or any other agreement among Accuride and the Noteholders, at any time prior to the date of on which the Stockholder's Meeting (i) furnishing information toChapter 11 Plan is confirmed by the Bankruptcy Court, or entering into discussions or negotiations with, any person that makes an unsolicited written, if Accuride has received a bona fide written proposal to the Company with respect to for a Competing Transaction which that the special committee of the board of directors of Accuride or, if the special committee is no longer in existence, the board of directors of Accuride determines in good faith is or could reasonably be expected to lead to a Superior Transaction and that the failure of the Board to pursue such Competing Transaction could reasonably be expected to result in a Superior Proposal, if, (A) breach of the failure to take such action would be inconsistent with the Board's and the Independent Committee's Board of Directors’ fiduciary duties to the Company's stockholders under applicable law, and then Accuride may (Ba) prior to furnishing such furnish non-public information to, or entering into and engage in discussions or and negotiations with, the person making such person, the Company (x) provides reasonable notice to Levy Acquisition Co. to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person proposal 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 representatives with respect to a the Competing Transaction which could reasonably be expected Transaction, and (b) terminate this Agreement pursuant to result Section 7(b) in order to enter into a Superior Proposal, following the receipt of such a proposal, if 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company Transaction or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any an agreement to engage in any of the foregoingsupport a Superior Transaction. For purposes of this Agreement, "a “Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all Transaction” shall be a Competing Transaction that the special committee of the shares board of Company Common Stock then outstanding or all or substantially all directors of Accuride or, if the assets special committee is no longer in existence, the board of the Company and the assumption directors of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common Stock with per share consideration that the Independent Committee Accuride 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 faith (x) would be received by holders of Company Common Stock in the Mergerbest interests of Accuride and its creditor constituencies and equity holders as a whole, (ii) is determined by including, but not limited to the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditionsNoteholders, and (ivy) has would reasonably be expected to provide a superior recovery (but, with respect to any creditor constituent, not been obtained by in excess of its claim) to each class of creditor constituencies and equity holders. At all times prior to, on, or on behalf after the date of the Company in violation commencement of this Section 4.3the Chapter 11 Case, Accuride shall be obligated to promptly deliver to the advisors for the Noteholders all written communications delivered to or received by Accuride or its advisors making or materially modifying any proposals with respect to any Competing Transaction, including, without limitation, copies of all expressions of interest, term sheets, letters of interest, offers, proposed agreements or otherwise, and shall periodically update (not less than once every week) the advisors for the Noteholders concerning such matters.
Appears in 1 contract
Competing Transactions. Nothing contained in From the date of this Agreement to the Effective Date or earlier termination of this Agreement, the Issuer shall prohibit not make a public announcement that it intends to support or supports, enter into an agreement to support, or file any pleading or document with the Company Bankruptcy Court evidencing its intention to support, or otherwise knowingly support, any transaction inconsistent with this Agreement or the Plan, shall not file any plan that is not the Plan and shall not agree to, consent to, knowingly provide any support to, solicit, participate in the formulation of, or vote for any transaction or plan of reorganization other than the Plan (upon a “Competing Transaction”). Notwithstanding anything to the recommendation of contrary herein, or in the Independent Committee) fromPlan or any other agreement among the Issuer and the Investors, at any time prior to the date of on which the Stockholder's Meeting (i) furnishing information toPlan is confirmed by the Bankruptcy Court, or entering into discussions or negotiations with, any person that makes an unsolicited written, if the Issuer has received a bona fide written proposal to the Company with respect to for a Competing Transaction which that the special committee of the board of directors of the Issuer or, if the special committee is no longer in existence, the board of directors of the Issuer determines in good faith is or could reasonably be expected to lead to a Superior Transaction and that the failure of the Board to pursue such Competing Transaction could reasonably be expected to result in a Superior Proposal, if, (A) breach of the failure to take such action would be inconsistent with the Board's and the Independent Committee's Board of Directors’ fiduciary duties to the Company's stockholders under applicable law, and then the Issuer may (Ba) prior to furnishing such furnish non-public information to, or entering into and engage in discussions or and negotiations with, the person making such person, the Company (x) provides reasonable notice to Levy Acquisition Co. to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person proposal 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 representatives with respect to a the Competing Transaction which could reasonably be expected Transaction, and (b) terminate this Agreement pursuant to result Section 12(d) in order to enter into a Superior Proposal, following the receipt of such a proposal, if 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company Transaction or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any an agreement to engage in any of the foregoingsupport a Superior Transaction. For purposes of this Agreement, "a “Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all Transaction” shall be a Competing Transaction that the special committee of the shares board of Company Common Stock then outstanding or all or substantially all directors of the assets Issuer or, if the special committee is no longer in existence, the board of directors of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common Stock with per share consideration that the Independent Committee Issuer 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 faith (x) would be received by holders of Company Common Stock in the Merger, (ii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects best interests of the proposalIssuer and its creditor constituencies and equity holders as a whole, including, but not limited to the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditionsInvestors, and (ivy) has would reasonably be expected to provide a superior recovery (but, with respect to any creditor constituent, not been obtained by in excess of its claim) to each class of creditor constituencies and equity holders. At all times prior to, on, or on behalf after the date of the Company in violation commencement of this Section 4.3the Chapter 11 Case, the Issuer shall be obligated to promptly deliver to the advisors for the Investors all written communications delivered to or received by the Issuer or its advisors making or materially modifying any proposals with respect to any Competing Transaction, including, without limitation, copies of all expressions of interest, term sheets, letters of interest, offers, proposed agreements or otherwise, and shall periodically update (not less than once every week) the advisors for the Investors concerning such matters.
Appears in 1 contract
Sources: Convertible Notes Commitment Agreement (Accuride Corp)
Competing Transactions. Nothing contained in From the date of this Agreement shall prohibit until the Company (upon the recommendation entry of the Independent Committee) fromU.S. Bidding Procedures Order, prior to and from the date of the Stockholder's Meeting conclusion of the Auction until the Closing Date or termination of this Agreement, neither any Seller nor any Affiliate of any Seller shall, directly or indirectly through any of its officers, directors, employees, agents, professional advisors or other representatives (collectively, the “Representatives”), (i) furnishing information to, or entering into discussions or engage in negotiations with, any person that makes an unsolicited written, bona fide proposal to the Company with respect to any proposal or offer from any Person (other than the Purchaser or its Affiliates) relating to in each case any acquisition, divestiture, recapitalization, business combination or reorganization of or involving all or a substantial part of the business and operations of the Business (a “Competing Transaction which could reasonably be expected Transaction”) other than with respect to result in a Superior Proposal, if, (A) the failure to take such action would be inconsistent with provision of information regarding the Board's Business 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 Levy Acquisition Co. 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 agreementAssets, (ii) complying execute any letter of intent or agreement providing for a Competing Transaction other than with Rule 14d-9 or Rule 14e-2 promulgated under respect to the Exchange Act with regard to a tender or exchange offerprovision of information regarding the Business and the Assets, or (iii) failing to make seek or withdrawing support U.S. Bankruptcy Court or modifying its recommendation referred to in Section 5.2, Canadian Court approval of a motion 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 the failure to take such action would be Order 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, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by herein (provided, however, that nothing contained herein shall prohibit the Sellers from providing any Person with the Bidding Procedures and related documents, answering questions about the Bidding Procedures or announcing the execution of this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of capital stock of the Company Agreement or the filing Auction). Notwithstanding the foregoing, the Sellers may provide access to written due diligence and other information regarding the Business or the Assets (excluding, for the avoidance of a registration statement under doubt, the Securities Act Transaction Documents) in connection therewith; (iv) any person an electronic data room, or group having acquired Beneficial Ownership of 15% in written or more or such person or group having increased its Beneficial Ownership beyond 15% of the outstanding shares of capital stock of the Companyoral form; provided, however, that the Sellers must provide the Purchaser at least equivalent access to all such due diligence materials and information. Without prejudice to any other methods or actions that may result in the cure of any breach of this clause shall not apply to Section 5.27, the "Loeb Group" consisting Parties acknowledge and agree that in the event that any officer or other employee of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account any Seller acting alone (without the assistance of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (voutside advisors) any public announcement in violation of a proposal, plan or intention to do any corporate policy approved by the board of the foregoing or any agreement to engage in any directors of the foregoing. For purposes NNC takes an action that constitutes a breach 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 shares of Company Common Stock then outstanding or all or substantially all of the assets of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that clause (i) provides holders of Company Common 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 in the Merger, (ii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditions, and (iv) has not been obtained by or on behalf of the Company in violation of this Section 4.35.27 but does not constitute a breach of any other clause of this Section 5.27, such breach shall be deemed cured in the event such action ceases and one or more of the Sellers notifies the counterparty or counterparties to the potential Competing Transaction in writing that the Sellers will not undertake such Competing Transaction, in each case no later than the fifth (5th) day after the Sellers become aware of such breach (for such purposes excluding the knowledge of the employee or officer whose action constitutes such breach), provided that such action that constituted the breach did not involve substantive negotiations regarding the terms of such Competing Transaction.
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Competing Transactions. Nothing contained in From the date of this Agreement to the Effective Date or earlier termination of this Agreement, Accuride shall prohibit not make a public announcement that it intends to support or supports, enter into an agreement to support, or file any pleading or document with the Company Bankruptcy Court evidencing its intention to support, or otherwise knowingly support, any transaction inconsistent with the Restructuring Support Documents, the Restructuring or the Chapter 11 Plan, shall not file any plan that is not the Chapter 11 Plan and shall not agree to, consent to, knowingly provide any support to, solicit, participate in the formulation of, or vote for any transaction or plan of reorganization other than the Chapter 11 Plan (upon a “Competing Transaction”). Notwithstanding anything to the recommendation of contrary herein, or in the Independent Committee) fromChapter 11 Plan or any other agreement among Accuride and the Lenders, at any time prior to the date of on which the Stockholder's Meeting (i) furnishing information toChapter 11 Plan is confirmed by the Bankruptcy Court, or entering into discussions or negotiations with, any person that makes an unsolicited written, if Accuride has received a bona fide written proposal to the Company with respect to for a Competing Transaction which that the special committee of the board of directors of Accuride or, if the special committee is no longer in existence, the board of directors of Accuride determines in good faith is or could reasonably be expected to lead to a Superior Transaction and that the failure of the board of directors to pursue such Competing Transaction could reasonably be expected to result in a Superior Proposal, if, (A) breach of the failure to take such action would be inconsistent with the Board's and the Independent Committee's board of directors’ fiduciary duties to the Company's stockholders under applicable law, and then Accuride may (Ba) prior to furnishing such furnish non-public information to, or entering into and engage in discussions or and negotiations with, the person making such person, the Company (x) provides reasonable notice to Levy Acquisition Co. to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person proposal 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 representatives with respect to a the Competing Transaction which could reasonably be expected Transaction, and (b) terminate this Agreement pursuant to result Section 7(b) in order to enter into a Superior Proposal, following the receipt of such a proposal, if 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company Transaction or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any an agreement to engage in any of the foregoingsupport a Superior Transaction. For purposes of this Agreement, "a “Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all Transaction” shall be a Competing Transaction that the special committee of the shares board of Company Common Stock then outstanding or all or substantially all directors of Accuride or, if the assets special committee is no longer in existence, the board of the Company and the assumption directors of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common Stock with per share consideration that the Independent Committee Accuride determines in the good faith, after receipt of advice faith exercise of its financial advisor, is more favorable from a financial point of view than the consideration to fiduciary duties (x) would be received by holders of Company Common Stock in the Mergerbest interests of Accuride and its creditor constituencies and equity holders as a whole, (ii) is determined by including, but not limited to the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditionsLenders, and (ivy) has would reasonably be expected to provide a superior recovery (but, with respect to any creditor constituent, not been obtained by in excess of its claim) to each creditor constituency and equity holders. At all times prior to, on, or on behalf after the date of the Company in violation commencement of this Section 4.3the Chapter 11 Cases, Accuride shall be obligated to promptly deliver to the advisors for the Administrative Agent all written communications delivered to or received by Accuride or its advisors making or materially modifying any proposals with respect to any Competing Transaction, including, without limitation, copies of all expressions of interest, term sheets, letters of interest, offers, proposed agreements or otherwise, and shall periodically update (not less than once every week) the advisors for the Supporting Lenders concerning such matters.
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Competing Transactions. Nothing contained in this Agreement shall prohibit the Company (upon the recommendation of the Independent Committeea) fromNotwithstanding any other provision hereof, prior to the date Measurement Date, the Company may solicit, engage in discussions regarding or encourage the solicitation of Competing Transactions involving higher or better competing bids in accordance with the terms of this Section 6.2. Without limiting the generality or effect of the Stockholder's Meeting foregoing, the Company may furnish information to any Person other than Parent or Purchaser (ia “Third Party”) furnishing information to, or entering into (and its Representatives) in response to such Third Party’s written proposal regarding a Competing Transaction and engage in discussions or negotiations with, with a Third Party (and its Representatives) relating to any person that makes an unsolicited written, bona fide such proposal to if the Company determines in good faith and consistent with respect to a its fiduciary duties (after consultation with outside counsel) that such Competing Transaction which could is 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, Competing Transaction that the Company (x) provides reasonable notice to Levy Acquisition Co. 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 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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; provided, however, that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. 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 shares of Company Common Stock then outstanding or all or substantially all of the assets of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common Stock with per share consideration that the Independent Committee determines in good faith, after receipt of advice of consulting in good faith with the Professionals for the First-Lien Debtholders and Second-Lien Debtholders, to be a higher or better proposal for the Company and its financial advisor, is more favorable from a financial point of view creditors than the consideration transactions with Parent and Purchaser pursuant to the terms of this Agreement and the Plan.
(b) Any Competing Transaction may not be received by deemed a higher or better offer than the transactions with Parent and Purchaser pursuant to the terms of this Agreement and the Plan, and no Debtor may enter into any Contract providing for any Competing Transaction, unless the Competing Transaction:
(i) provides for equal treatment of all holders within each class of Company Common Stock First-Lien Debt (including Purchaser) and Second-Lien Debt (except as any such holder may agree in the Merger, writing in its sole discretion);
(ii) is determined by (A) provides consideration in cash or its indubitable equivalent payable to the Independent Committee First-Lien Debtholders in its good faith judgment, after receipt an amount greater than or equal to the sum of advice of its financial advisor First-Lien Debtholder Cash Amount and outside legal counsel, to the First-Lien Noteholder Amount (such amount shall be likely of being completed (taking into account all legal, financial, regulatory and other aspects calculated in the case of the proposalParent Notes assuming that Purchaser did not contribute the Contributed First-Lien Debt, but received a distribution thereon that was the Person making same in kind and amount as that received by all other First-Lien Debtholders) and (B) provides aggregate consideration in cash or its indubitable equivalent payable to the proposal Second-Lien Debtholders in an amount greater than or equal to the Second-Lien Debtholder Note Amount;
(iii) provides for payment upon consummation of a Competing Transaction or termination of a Competing Transaction Plan or the Contract providing for a Competing Transaction to Purchaser in an amount equal to the Break-Up Fee;
(iv) includes a written offer accompanied by definitive documentation which the Third Party has signed and the expected timing Company has determined it would, subject to complete the proposalterms hereof, be willing to accept, and such offer is binding and irrevocable for not less than ten Business Days without material modification;
(v) is accompanied by written evidence of available cash and such other evidence of ability to consummate the proposed Competing Transaction as the Company may reasonably request; and
(vi) is not subject to any due diligence or financing contingency. For purposes of this Section 6.2 (b), Parent Notes shall be valued as set forth in the Undertaking.
(c) The Company shall keep Parent, Purchaser and the Professionals for the First-Lien Debtholders and Second-Lien Debtholders informed of such inquiries and proposals promptly, and in any event within 48 hours after the initial receipt thereof (including by providing copies of all written inquiries, proposals and offers, including the documentation relating thereto), and may not accept any proposal for a Competing Transaction without giving Parent and Purchaser not less than four Business Days’ prior written notice of the material terms thereof (including copies of all written documents providing therefor) and the opportunity to increase the consideration payable under this Agreement in response thereto.
(d) In the event that the Company consummates (A) a Competing Transaction with a Third Party or (B) a transaction with Parent and Purchaser at an amount above the Purchase Price, any consideration above the Purchase Price shall be paid, subject to Sections 6.2(b)(i) and 6.2(b)(ii), (iiix) does notfirst, to the First-Lien Debtholders until the First-Lien Debt has been satisfied in full and (y) second, in the definitive agreementevent that the First-Lien Debt has been satisfied in full, contain any "due diligence" conditions, and (iv) to the Second-Lien Debtholders until the Second-Lien Debt has not been obtained by or on behalf of the Company satisfied in violation of this Section 4.3full.
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Competing Transactions. Nothing contained in From the date of this Agreement shall prohibit to the Effective Date or earlier termination of this Agreement, the Company shall not make a public announcement that it intends to support or supports, enter into an agreement to support, or file any pleading or document with the Bankruptcy Court evidencing its intention to support, or otherwise knowingly support, any transaction inconsistent with this Agreement or the First Amended Plan, shall not file any plan that is not the First Amended Plan and shall not agree to, consent to, knowingly provide any support to, solicit, participate in the formulation of, or vote for any transaction or plan of reorganization other than the First Amended Plan (upon each, a “Competing Transaction”). Notwithstanding anything to the recommendation of contrary herein, or in the Independent Committee) fromFirst Amended Plan or any other agreement among the Company and the Backstop Parties, at any time prior to the date of on which the Stockholder's Meeting (i) furnishing information toFirst Amended Plan is confirmed by the Bankruptcy Court, or entering into discussions or negotiations with, any person that makes an unsolicited written, if the Company has received a bona fide written proposal to the Company with respect to for a Competing Transaction which that the board of directors of the Company determines in good faith is or could reasonably be expected to lead to a Superior Transaction and that the failure of the board to pursue such Competing Transaction could reasonably be expected to result in a Superior Proposal, if, (A) breach of the failure to take such action would be inconsistent with the Board's and the Independent Committee's board of directors’ fiduciary duties under applicable Law, then the Company (a) may (i) furnish non-public information to, and engage in discussions and negotiations with, the person making such proposal and its representatives with respect to the Company's stockholders under applicable lawCompeting Transaction, and (Bii) prior terminate this Agreement pursuant to furnishing such information to, Section 13(c) in order to enter into a Superior Transaction or entering into discussions or negotiations with, such person, the Company (x) provides reasonable notice an agreement to Levy Acquisition Co. to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person support a Superior Transaction and (yb) receives from shall (i) provide the Backstop Parties with written notice of the Competing Transaction within 24 hours of the Company’s receipt of such person a fully executed confidentiality agreementCompeting Transaction, together with copies of all material written documents setting forth in reasonable detail the details of such Competing Transaction, and (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under notify the Exchange Act with regard to a tender or exchange offer, or (iii) failing to make or withdrawing or modifying its recommendation referred to Backstop Parties 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 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. As used in this Agreement, "Competing Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of 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 writing within 24 hours of the Company; provided, however, ’s board of directors determination that this clause shall not apply to the "Loeb Group" consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇ Family Fund, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. as Trustees for Loeb ▇▇▇▇▇▇ Hornblower Profit Sharing Trading for Account of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ Arbitrage Management, Inc., Loeb Arbitrage Fund and Loeb Partners Corporation; or (v) any public announcement of such Competing Transaction is a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoingSuperior Transaction. For purposes of this Agreement, "a “Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting Transaction” shall be a Competing Transaction that the board of cash and/or securities, all directors of the shares of Company Common Stock then outstanding or all or substantially all of determines in good faith (x) would be in the assets best interests of the Company and its creditor constituencies and equity holders as a whole, including, but not limited to the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) provides holders of Company Common 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 in the Merger, (ii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to be likely of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal, the Person making the proposal and the expected timing to complete the proposal), (iii) does not, in the definitive agreement, contain any "due diligence" conditionsBackstop Parties, and (ivy) has would reasonably be expected to provide a superior recovery (but, with respect to any creditor constituent, not been obtained by or on behalf in excess of its claim) to each class of creditor constituencies and equity holders. At all times, the Company in violation shall be obligated to promptly deliver to the advisors for the Backstop Parties all written communications delivered to or received by the Company or its advisors making or materially modifying any proposals with respect to any Competing Transaction, including, without limitation, copies of this Section 4.3all expressions of interest, term sheets, letters of interest, offers, proposed agreements or otherwise, and shall periodically update (not less than once every week) the advisors for the Backstop Parties concerning such matters.
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