Common use of Competing Transactions Clause in Contracts

Competing Transactions. (a) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and continuing until 11:59 p.m. New York City time on the date which is forty (40) days after the date of this Agreement (the “Go-Shop Period End Date”), the Company and the Company Subsidiaries and their respective Representatives shall have the right (acting under the direction of the Special Committee) to directly or indirectly (i) initiate, solicit and encourage Competing Transactions, including by way of public disclosure and by way of providing access to non-public information to any person (each, a “Solicited Person ”) pursuant to one or more Acceptable Confidentiality Agreements; provided, that the Company shall promptly (and in any event within forty-eight (48) hours) provide to Parent any information concerning the Company or the Company Subsidiaries 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 otherwise cooperate with, assist or participate in or facilitate any inquiries, proposals, discussions or negotiations that relate to a Competing Transaction. Within forty-eight (48) hours following the Go-Shop Period End Date, the Company shall notify Parent in writing of the material terms and conditions of any proposal or offers regarding a Competing Transaction (including any amendments or modifications thereof) received from any Excluded Party (as defined below) and the identity thereof. Except as otherwise expressly provided in Section 6.04(c), the Company shall (x) immediately cease any activities permitted by the preceding sentence and any discussions or negotiations with any person (other than Parent and any Excluded Party) that are ongoing as of the Go-Shop Period End Date and that relate, or may reasonably be expected to lead to, a Competing Transaction, and (y) promptly request each person (other than Parent and any Excluded Party) that has theretofore executed a standstill, confidentiality or similar agreement in connection with such person’s consideration of a Competing Transaction to return (or 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. Except as set forth in Section 6.04(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 XIII, 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 encourage (including by way of furnishing nonpublic information), or 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 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, any person or entity in furtherance of such inquiries 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) authorize or permit any Representatives of the Company or any Company Subsidiary retained by or acting directly or indirectly under the direction of the Company or any Company Subsidiary, to take any action set forth in clauses (A) – (C) of this Section 6.04(a) or (E) release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party, other than to permit such third party to make a proposal or offer with respect to a Competing Transaction in accordance with this Section 6.04. (b) Following the Go-Shop Period End Date, the Company shall notify Parent as promptly as reasonably practicable (and in any event within 48 hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any inquiry or contact with any person, regarding a Competing Transaction or that would reasonably be expected to lead to a Competing Transaction, specifying (i) the material terms and conditions thereof (including material amendments or proposed material amendments), (ii) the identity of the party making such proposal or offer or inquiry or contact, and (iii) 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 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 (A) promptly notify Parent orally and in writing if it determines to initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 6.04, and (B) 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 Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. (c) Notwithstanding anything to the contrary in this Section 6.04, 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 inquiry, proposal or offer with respect to a Competing Transaction from any person, the Company and its Representatives may contact such person solely in order to (A) 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 (B) notify such person of the restrictions of this Section 6.04; 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 (provided, that such bona fide proposal or offer shall not have been obtained in material violation of Section 6.04(a) and the Company shall have complied in all material respects with the requirements of Section 6.04(a) with respect to such proposal or offer), if the Special Committee, which shall have full, sole and exclusive authority to make such a decision, has (x) determined, in its good faith judgment (after consultation with its outside financial advisor and legal counsel), that such proposal or offer constitutes, or may reasonably be expected to result in, a Superior Proposal, (y) promptly provided written notice to Parent of its intent to furnish information or enter into discussions or negotiations with such person, and (z) obtained from such person an Acceptable Confidentiality 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. For the avoidance of doubt, after the Go-Shop Period End Date, the Company may continue to take any of the actions described in this Section 6.04(c) (subject to the limitations and obligations set forth herein) with respect to any bona fide written proposals or offers regarding a Competing Transaction submitted by a Solicited Person 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 legal counsel) that such proposal or offer regarding a Competing Transaction constitutes, or may reasonably be expected to result in, a Superior Proposal (each such Solicited Person, an “Excluded Party”); provided, that an Excluded Party shall cease to be an Excluded Party if the negotiation between the Company and such Solicited Person with respect to the Competing Transaction that resulted in such Solicited Person becoming an Excluded Party shall have been terminated. (d) Except as set forth in Section 6.04(e), neither the Company Board nor the Special Committee shall (i) change, withhold, withdraw, qualify or modify, in a manner adverse to Holdco, Parent or Merger Sub, or propose publicly to change, withhold, withdraw, qualify or modify, in a manner adverse to Holdco, Parent or Merger Sub, the Company Recommendation, (ii) take any action or make any recommendation or public statement in connection with a tender offer or exchange offer that constitutes a Competing Transaction other than a recommendation against such offer or a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act or (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Competing Transaction (any of such actions under clauses (i), (ii) or (iii) being referred to as a “Change in the Company Recommendation”) or (iv) approve or recommend, or cause or permit the Company or any of the Company Subsidiaries to enter into any agreement, letter of intent, acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”). (e) Notwithstanding the foregoing, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee, prior to the time of the Stockholders’ Meeting and upon advice by outside financial advisor and legal counsel, (i) that failure to make a Change in the Company Recommendation would reasonably be expected to be inconsistent with its fiduciary obligations under applicable Law, the Company Board may, upon the recommendation of the Special Committee, make a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement pursuant to Section 8.03(c); or (ii) that an offer or proposal regarding a Competing Transaction which did not result from a material breach of Section 6.04(a) constitutes a Superior Proposal, the Company Board may, upon recommendation of the Special Committee, make a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement pursuant to Section 8.03(d) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal if the Company concurrently (or prior to such termination) pays the Company Termination Fee in accordance with Section 8.06(a), but only if (x) after (A) providing at least five (5) Business Days’ written notice to Parent (a “6.04 Notice”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement pursuant to Section 8.03(d), and (B) negotiating with and causing its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such third party proposal or offer would cease to constitute a Superior Proposal and (z) following the end of the five (5) Business Day period, the Company Board (upon the recommendation of the Special Committee and based upon advice by its outside financial advisor and legal counsel), shall have determined in good faith, taking into account any changes to this Agreement proposed in writing by Parent in response to the 6.04 Notice or otherwise, that the Superior Proposal giving rise to the 6.04 Notice continues to constitute a Superior Proposal; provided, that any material modifications to such third party proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(e), but that references in this Section 6.04(e) to five (5) Business Days shall be changed to references to three (3) Business Days. (f) Nothing contained in this Section 6.04 shall be deemed to prohibit the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking or disclosing to the Stockholders a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to Stockholders to comply with Applicable Law, provided, that, subject to Section 6.04(d), the Company Board shall expressly reaffirm the Company Recommendation in such disclosure.