No Solicitation by Parent. (a) From and after the date of this Agreement, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any discussion or negotiations with any Person conducted heretofore by Parent or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal. (b) From and after the date of this Agreement, Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly: (i) initiate, solicit, propose, knowingly encourage, or knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Competing Proposal; (ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating to, or in furtherance of a Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal; (iii) furnish any non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal; (iv) enter into any letter of intent or agreement in principle, or other agreement providing for a Parent Competing Proposal; or (v) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 (without conveying, requesting or attempting to gather any other information). (c) From and after the date of this Agreement, Parent shall promptly (and in any event within the shorter of one Business Day and 48 hours) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (including the identity of such Person), and Parent shall provide to the Company promptly (and in any event within the shorter of one Business Day and 48 hours) (i) an unredacted copy of any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made in writing provided to Parent or any of its Subsidiaries or (ii) any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal is not (or any portion thereof is not) made in writing, a written summary of the material financial and other terms thereof. Thereafter Parent shall (A) keep the Company reasonably informed, on a prompt basis (and in any event within the shorter of one Business Day and 48 hours), of any material development regarding the status or terms of any such Parent Competing Proposal (including any amendments thereto) or material requests and (B) provide to the Company as soon as practicable after receipt or delivery thereof (and in any event within the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent or its Representatives from any Person. (d) Except as permitted by Section 6.4(e), Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly: (i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation; (ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement; (iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal; (iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”); (v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer; (vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or (vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”). (e) Notwithstanding anything in this Agreement to the contrary, (i) Parent, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement by applicable U.S. federal securities Laws; provided, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth in Section 8.1(d); (ii) prior to, but not after, receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises after the date of this Agreement and that did not arise from or in connection with a breach of this Agreement by Parent, Parent may, if the Parent Board or a committee thereof so chooses, effect a Parent Change of Recommendation; provided, however, that such a Parent Change of Recommendation may not be made unless and until: (A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that a Parent Intervening Event has occurred; (B) the Parent Board determines in good faith, after consultation with its outside legal counsel, that failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law; (C) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event; (D) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments or revisions to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and (E) at the end of the four Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith after consultation with its financial advisors and outside legal counsel, that the failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law; provided, that in the event of any material changes regarding any Parent Intervening Event, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(e)(ii) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period. (f) Notwithstanding anything to the contrary in this Section 6.4, any action, or failure to take action, that is taken by a director or officer of Parent or any of its Subsidiaries in violation of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent.
Appears in 2 contracts
Sources: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)
No Solicitation by Parent. (a) From and after Except as expressly permitted by this Section 5.04, from the date of this AgreementAgreement until the First Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 9.01, Parent shall not, shall cause its Subsidiaries not to and shall use its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any discussion or negotiations with any Person conducted heretofore by Parent or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal.
(b) From and after the date of this Agreement, Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
: (i) initiate, solicit, propose, solicit or knowingly encourage, encourage or knowingly facilitate any inquiry inquiries or requests for information with respect to, or the making of of, any inquiry regarding, or any proposal or offer that constitutes, or would reasonably be expected to result inin or lead to, a Parent Competing any Acquisition Proposal;
; (ii) engage in, continue or otherwise participate in any negotiations or discussions with concerning, or provide access to its properties, books and records or any confidential information or data to, any Person with respect relating to any proposal, offer, inquiry or negotiations with any Person with respect to, relating torequest for information that constitutes, or in furtherance of a Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to result in or lead to a Parent Competing to, any Acquisition Proposal;
; (iii) furnish any non-public information regarding Parent approve, endorse or its Subsidiariesrecommend, or access propose publicly to the propertiesapprove, assets endorse or employees of Parent or its Subsidiariesrecommend, to any Person in connection with or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Acquisition Proposal;
; (iv) execute or enter into into, any letter of intent or intent, memorandum of understanding, agreement in principle, confidentiality agreement (other than an Acceptable Confidentiality Agreement executed in accordance with Section 5.04(b)(ii)), merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement providing for a Parent Competing or relating to any Acquisition Proposal; or
or (v) submit resolve or agree to do any Parent Competing Proposal to the vote of the stockholders of Parentforegoing; provided, that that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, (A) in response to an unsolicited inquiry or proposal, seek to clarify the terms and conditions of such inquiry or proposal to determine whether such inquiry or proposal constitutes, or would reasonably be expected to result in or lead to, a Superior Proposal and (B) in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 5.04; provided, further, that it is understood and agreed that any determination or action by Parent or the Parent Board, as applicable, made in accordance with Section 5.04(b), Section 5.04(c), or Section 5.04(d), as applicable, shall not be deemed to be a breach or violation of this Section 5.04(a). Parent also agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Subsidiaries and shall use its reasonable best efforts to cause its and their Representatives to, cease any solicitations, discussions or negotiations with any Person (without conveyingother than the Company and its Representatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that would reasonably be expected to lead to, requesting or attempting to gather any other information).
(c) From and after result in, an Acquisition Proposal. Parent also agrees that within three Business Days of the date execution of this Agreement, Parent shall instruct each Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of it or any of its Subsidiaries prior to the date hereof, and Parent shall terminate access to any physical or electronic data room maintained by or on behalf of Parent or any of its Subsidiaries with respect thereto. Parent shall promptly (and in any event within the shorter of one two Business Day and 48 hoursDays) notify notify, in writing, the Company of the receipt by Parent (directly or indirectly) of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or would reasonably be expected to result in or lead to, any Acquisition Proposal, which notice shall include the identity of the Person or group of Persons making, such inquiry, proposal, offer or request for information and, with respect to any such proposal or offer, a summary of the material terms of, and an unredacted copy of any proposed definitive agreement, proposal or offer made in writing or, if not in writing, a written description of the material terms and conditions of such proposal or offer (and shall include any other material documents evidencing or specifying the terms of such proposal or offer or, to the extent applicable, inquiry). To the extent Parent Competing Proposal is prohibited by a non-disclosure or any confidentiality agreement entered into prior to the date hereof from providing the information set forth in the preceding sentence, Parent shall not be required to provide the Company with the identity of the Person(s) from which such expression of interest, inquiry, inquiry or proposal or offer with respect to a Parent Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (including the identity of such Person), and was received. Parent shall provide to the Company promptly (and in any event within the shorter of one two Business Day and 48 hours) (i) an unredacted copy of any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made in writing provided to Parent or any of its Subsidiaries or (ii) any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal is not (or any portion thereof is not) made in writing, a written summary of the material financial and other terms thereof. Thereafter Parent shall (ADays) keep the Company reasonably informed, on a prompt basis (and in any event within the shorter of one Business Day and 48 hours), informed of any material development regarding the status or terms of developments with respect to any such Parent Competing inquiry, proposal, offer, request for information or Acquisition Proposal (including any amendments thereto) changes or material requests proposed changes thereto and (B) provide to the Company as soon as practicable after receipt or delivery thereof (and in any event within the shorter of one Business Day and 48 hours) copies of all material written correspondence and other any additional material written materials provided to Parent received by Parent, its Subsidiaries or its or their respective Representatives). The Company shall not enter into any confidentiality agreement with any Person after the date of this Agreement that prohibits it from complying with the foregoing obligations. Without limiting the foregoing, it is understood that any violation of the restrictions contained in this Section 5.04 by any of Parent’s Subsidiaries, or any of Parent’s or its Subsidiaries’ respective Representatives from any Personmade at the direction of Parent, shall be deemed to be a breach of this Section 5.04 by Parent.
(db) Except as permitted by Notwithstanding anything to the contrary in this Section 6.4(e)5.04, this Agreement shall not prevent Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause or the other Representatives of Parent and its Subsidiaries not to, directly or indirectlyBoard from:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention taking and disclosing to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary,
(i) Parent, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or other disclosure required any similar communication to be made stockholders in connection with the Joint Proxy Statement by applicable U.S. federal securities Laws; providedmaking or amendment of a tender offer or exchange offer) if it determines, howeverafter consultation with outside legal counsel, that if such disclosure has the effect of withdrawing or adversely modifying is required by Applicable Law; provided that this clause (i) shall not be deemed to permit the Parent Board Recommendation, such disclosure shall be deemed to be effect a Parent Change of in Recommendation except in accordance with Section 5.04(e) and the Company shall have the right to terminate this Agreement Section 5.04(d), as set forth in Section 8.1(d)applicable;
(ii) prior to, but not after, receipt of to obtaining the Parent Stockholder Approval, in response to negotiating or executing an Acceptable Confidentiality Agreement with any Person and its Representatives who has made (and not withdrawn) a Parent Intervening Event that occurs or arises bona fide written Acquisition Proposal after the date of this Agreement and hereof that did not arise result from or in connection with a breach of this Agreement by Parent, Parent maySection 5.04(a), if the Parent Board or a committee thereof so choosesBoard, effect a Parent Change of Recommendation; providedas applicable, however, that such a Parent Change of Recommendation may not be made unless and until:
(A) the Parent Board or a committee thereof determines shall have determined in good faith faith, after consultation with its financial advisors and outside legal counsel and financial advisor(s), that such Acquisition Proposal constitutes or would reasonably be expected to constitute or result in a Parent Intervening Event has occurred;
Superior Proposal and (B) the Parent Board determines shall have determined in good faith, after consultation with its outside legal counsel, that the failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event do so would be inconsistent with the its fiduciary duties owed by the under Applicable Law; provided that Parent Board shall provide a copy of such executed Acceptable Confidentiality Agreement promptly (and in any event within two Business Days) to the stockholders of Parent under applicable LawCompany;
(Ciii) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that prior to obtaining the Parent Board Stockholder Approval, (A) engaging in any negotiations or a committee thereof intends to consider whether to take such action discussions with any Person and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates its Representatives who has made (and causes not withdrawn) a bona fide written Acquisition Proposal after the date hereof that did not result from a breach of Section 5.04(a) (which negotiations or discussions need not be solely for clarification purposes) and (B) providing access to Parent’s or any of its officersSubsidiaries’ properties, employees, financial advisor books and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments records and providing information or revisions to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and
(E) at the end of the four Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company data in response to a request therefor by a Person who has made (and not withdrawn) a bona fide written Acquisition Proposal that did not result from a breach of Section 5.04(a), in each case, if the notice, and determines Parent Board: (1) shall have determined in good faith faith, after consultation with its outside legal counsel and financial advisors and advisor(s), that such Acquisition Proposal constitutes or would reasonably be expected to constitute or result in a Superior Proposal; (2) shall have determined in good faith, after consultation with its outside legal counsel, that the failure to effect do so would be inconsistent with its fiduciary duties under Applicable Law; and (3) has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided that Parent shall provide to the Company a list of any material non-public information or data that is provided to any Person given such access, and to the extent such information was not previously made available to the Company, copies of such information prior to or substantially concurrently with the time it is provided to such Person (and in any event within two Business Days thereof);
(iv) prior to obtaining the Parent Stockholder Approval, making a Parent Change in Recommendation (but only to the extent permitted by Section 5.04(c) or Section 5.04(d)); or
(v) resolving, authorizing, committing or agreeing to take any of Recommendation the foregoing actions, but only to the extent such actions would be permitted by the foregoing clauses (i) through (iv).
(c) Notwithstanding anything in this Section 5.04 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its financial advisor(s) and outside legal counsel, in response to a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.04, that (i) such Parent Intervening Event proposal constitutes a Superior Proposal and (ii) the failure to take the actions specified in this Section 5.04(c) would be inconsistent with the Parent Board’s fiduciary duties owed by under Applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided that the Parent Board will not be entitled to make a Parent Change in Recommendation unless (A) Parent delivers to the stockholders Company a written notice (a “Parent Notice”) advising the Company that the Parent Board proposes to take such action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action of the Parent under applicable Law; providedBoard, the identity of the Person or group of Persons making such Superior Proposal, an unredacted copy of such Superior Proposal, including the most current version of any proposed definitive agreement (which version shall be updated on a prompt basis) and any related documents (including financing documents) to the extent provided by the relevant party in connection with the Superior Proposal, and (B) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Notice (such period from the time the Parent Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Notice (it being understood that any material revision, amendment, update or supplement to the terms and conditions of such Superior Proposal, including any revision in price or financing, shall be deemed to constitute a new Superior Proposal and shall require a new notice but with an additional two Business Day (instead of five Business Day) period from the date of such notice) (it being understood that there may be multiple extensions), the “Parent Notice Period”), the Parent Board reaffirms in good faith (1) after consultation with its outside legal counsel and financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account the adjustments to the terms and conditions of this Agreement committed to by the Company in writing and (2) after consultation with its outside legal counsel, that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under Applicable Law. If requested by the Company, Parent will, and will cause its Subsidiaries to, and will use its reasonable best efforts to cause its or their Representatives to, during the Parent Notice Period, engage in good faith negotiations with the Company and its Representatives (to the extent the Company desires to negotiate) to make such adjustments in the event terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal.
(d) Notwithstanding anything in this Section 5.04 or Section 5.05(d) to the contrary, if, at any material changes regarding any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, in response to a Parent Intervening Event, after consultation with its outside legal counsel, that the failure to make a Parent shall Change in Recommendation would be required inconsistent with the Parent Board’s fiduciary duties under applicable Law, the Parent Board may, prior to deliver obtaining the Parent Stockholder Approval, make a new written notice Parent Change in Recommendation; provided that Parent will not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company and to comply with a written notice (a “Parent Intervening Event Notice”) advising the requirements of this Section 6.4(e)(ii) with respect to such new written notice, except Company that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period.
(f) Notwithstanding anything to the contrary in this Section 6.4, any action, or failure Parent Board proposes to take action, such action and containing a reasonably detailed description of the material facts underlying the Parent Board’s determination that is taken by a director or officer of Parent or any of its Subsidiaries in violation of this Section 6.4 Intervening Event has occurred and the reasons for taking such action (it being acknowledged that such Parent Intervening Event Notice shall be deemed to be not itself constitute a breach of this Section 6.4 Agreement), and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional two Business Day (instead of four Business Day) period from the date of such notice) (it being understood that there may be multiple extensions), the “Parent Intervening Event Notice Period”), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel) that, after taking into account the adjustments to the terms and conditions of this Agreement committed to by Parentthe Company in writing, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under Applicable Law. If requested by the Company, Parent will, and will cause its Subsidiaries to, and will use its reasonable best efforts to cause its or their Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation.
(e) For purposes of this Agreement, the following terms shall have the meanings assigned below:
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
No Solicitation by Parent. (a) From Parent will, and after the date of this Agreementwill cause its Subsidiaries, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective directors, officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any solicitation, encouragement, discussion or negotiations that commenced prior to and were ongoing as of the date of this Agreement with any Person conducted heretofore by Parent or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal.
(b) From Except as otherwise expressly permitted by this Section 6.4, from and after the date of this AgreementAgreement until the Effective Time, or if earlier, the termination of this Agreement in accordance with Article VIII hereof, Parent and its officers and directors will not, and will cause Parent’s Subsidiaries its Affiliates and Subsidiaries, and its and their respective officers directors and directors not toofficers, and will use their reasonable best efforts to cause the other its Representatives of Parent and its Subsidiaries not to, directly or indirectly:
, (i) initiate, solicit, propose, solicit or knowingly encourage, encourage or knowingly facilitate any inquiry inquiries, proposals, or offers regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Competing Proposal;
, (ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating to, or in furtherance of a Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
, (iii) furnish any non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
, (iv) enter into any letter of intent or agreement in principle, or other agreement providing for or commitment in respect of any proposal or offer that constitutes a Parent Competing Proposal; or
Proposal (other than a confidentiality agreement in accordance with Section 6.4(f)(ii)) or (v) submit any Parent Competing Proposal to the vote of the stockholders of Parent; providedresolve, that notwithstanding anything to the contrary in this Agreementagree or publicly propose to, or permit Parent or any of its Subsidiaries or any of its or their Representatives may, in response to an inquiry agree or proposal from a third party, inform a third party or its Representative publicly propose to take any of the restrictions imposed by the provisions of this Section 6.4 actions referred to in clauses (without conveying, requesting or attempting i) to gather any other information(iv).
(c) Parent shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, any standstill or confidentiality provision with respect to any such proposal or offer or similar matter in any agreement to which Parent or any of its Subsidiaries is a party; provided, that if the Parent Board determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations to Parent’s stockholders under applicable Law, Parent may waive any such standstill provision solely to the extent necessary to permit a third party to make a Parent Competing Proposal on a confidential basis conditioned upon such person agreeing that Parent shall not be prohibited from providing any information to the Company regarding any such Parent Competing Proposal in accordance with the terms of this Section 6.4. Parent shall promptly (and in any event within two (2) Business Days of the date of this Agreement) request each Person that has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of any Parent Competing Proposal to, in accordance with the terms of such agreement, return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of Parent or any of its Subsidiaries. Parent agrees that it shall promptly inform its Representatives of the obligations undertaken in this Section 6.4.
(d) Unless expressly permitted by Section 6.4(f) or Section 6.4(g), Parent shall not (i) fail to include the Parent Board Recommendation in the Joint Proxy Statement, (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to the Company, the Parent Board Recommendation, (iii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Competing Proposal or (iv) publicly make any recommendation in connection with a tender or exchange offer for any outstanding capital stock of Parent, other than a recommendation to reject such offer (the taking of any action described in this Section 6.4(d) being referred to as a “Parent Change of Recommendation”).
(e) From and after the date of this Agreement, Parent shall promptly advise (and but in any event within the shorter each case, not later than two (2) days of one Business Day and 48 hourssuch receipt or request) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made on or after the date of this Agreement, Agreement or any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (including the identity but in each case, not later than two (2) days of such Personreceipt or request), and Parent shall provide to the Company promptly (and in any event within the shorter of one Business Day and 48 hourssuch two (2) day time frame) either (i) an unredacted a copy of any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal (including all exhibits and schedules thereto) made in writing provided to Parent or any of its Subsidiaries or (ii) any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal is not (or any portion thereof is not) made in writing, a written summary of the material financial and other terms thereofof such Parent Competing Proposal (including the identity of the Person making such Company Competing Proposal) if not made in writing. Thereafter Parent shall (A) keep the Company reasonably informed, informed on a reasonably prompt basis (and in any event within the shorter of one Business Day and 48 hours), of any material development regarding with respect to the status or and material terms of any such Parent Competing Proposal (including and any amendments thereto) or material requests and (B) provide changes to the status of any such discussions or negotiations. Without limiting the foregoing, Parent shall notify the Company as soon as practicable after receipt if Parent determines to begin providing information or delivery thereof (and to engage in discussions or negotiations concerning a Parent Competing Proposal, prior to providing any such information or engaging in any event within the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent such discussions or its Representatives from any Personnegotiations.
(d) Except as permitted by Section 6.4(e), Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”).
(ef) Notwithstanding anything in this Agreement to the contrary,
(i) , Parent, directly or indirectly through one or more of its Representatives, may:
(i) to the extent applicable, disclose to Parent’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or make any “stop, look and listen” communication to Parent’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or any similar statement in response to any publicly disclosed Parent Competing Proposal; provided, however, that Parent shall not effect any Parent Change of Recommendation other than in accordance with Section 6.4(f)(iii) or Section 6.4(g);
(ii) prior to the receipt of the Parent Stockholder Approval, engage in the activities prohibited by Sections 6.4(b)(i), 6.4(b)(ii) or 6.4(b)(iii) with any Person who has made a written, bona fide Parent Competing Proposal that did not arise from a breach of the obligations set forth in this Section 6.4; provided, however, that (A) no non-public information that is prohibited from being furnished pursuant to Section 6.4(b) may after consultation be furnished until Parent receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of nonpublic information furnished to such Person by or on behalf of Parent that are no less favorable to Parent in the aggregate than the terms of the Confidentiality Agreement; provided, further, that such confidentiality agreement does not contain provisions that prohibit Parent from complying with its outside legal counselthe provisions of this Section 6.4, make and (B) prior to taking any such disclosures as actions, the Parent Board or any committee thereof determines in good faith are necessary faith, after consultation with Parent’s financial advisor and outside legal counsel, that such Parent Competing Proposal is, or could reasonably be expected to comply with Rule 14d-9 lead to, a Parent Superior Proposal;
(iii) prior to the receipt of the Parent Stockholder Approval, in response to a Parent Competing Proposal that is conditioned upon the termination of this Agreement or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required failure of the Transactions to be made consummated (including through the failure of any of the conditions set forth in Article VII) and that did not arise from a breach of the Joint Proxy Statement by applicable U.S. federal securities Laws; providedobligations set forth in this Section 6.4, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendationso chooses, such disclosure shall be deemed cause Parent to be effect a Parent Change of Recommendation and the Company shall have the right or to terminate this Agreement as pursuant to Section 8.1(f), if prior to taking such action (A) the Parent Board determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that such Parent Competing Proposal is a Parent Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger proposed by the Company in response to such Parent Competing Proposal) and (B) Parent shall have given five (5) Business Days’ prior notice to the Company that Parent has received such proposal, specifying the material terms and conditions of such proposal (including the identity of the Person making such proposal), and, that Parent intends to take such action, and (1) after giving such notice and prior to effecting such Parent Change of Recommendation or termination, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate), which negotiations may be on a nonexclusive basis with respect to other negotiations or discussions permitted by this Section 6.4, to make such adjustments or revisions to the terms and conditions of this Agreement such that the Parent Competing Proposal would no longer constitute a Parent Superior Proposal; and (2) at the end of the five (5) Business Day period, prior to taking action to effect a Parent Change of Recommendation or to terminate this Agreement pursuant to Section 8.1(f), the Parent Board takes into account any adjustments or revisions to the terms of this Agreement committed to by the Company in writing, and determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that the Parent Competing Proposal remains a Parent Superior Proposal; provided, that in the event of any change to the financial terms of, or any other material amendment or material modification to, any Parent Superior Proposal, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(f)(iii) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 8.1(d);6.4(f)(iii) shall be reduced to two (2) Business Days; and
(iiiv) prior toto the receipt of the Parent Stockholder Approval, seek clarification from (but not afterengage in negotiations with or provide non-public information to) any Person that has made a Parent Competing Proposal solely to clarify and understand the terms and conditions of such proposal to provide adequate information for the Parent Board or any committee thereof to make an informed determination under this Section 6.4.
(g) Notwithstanding anything in this Agreement to the contrary, prior to the receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises after the date of this Agreement and that did not arise from or in connection with a breach of this Agreement by ParentAgreement, Parent may, if the Parent Board or a committee thereof so chooses, effect a Parent Change of Recommendation; provided, however, that Recommendation if prior to taking such a Parent Change of Recommendation may not be made unless and until:
action (A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that a Parent Intervening Event has occurred;
(B) the Parent Board determines in good faith, after consultation with its Parent’s financial advisor and outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations to Parent’s stockholders under applicable Law, (B) Parent shall have given five (5) Business Days’ prior notice to the Company that Parent has determined that a Parent Intervening Event has occurred or arisen (which notice will reasonably describe such Parent Intervening Event) and that Parent intends to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law;
Recommendation, and (C) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D1) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments or revisions to the terms and conditions of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and
and (E2) at the end of the four five (5) Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith faith, after consultation with its Parent’s financial advisors advisor and outside legal counsel, that the failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be reasonably likely to be inconsistent with the fiduciary duties obligations owed by the Parent Board to the Parent’s stockholders of Parent under applicable Law; provided, that in the event of any material changes regarding any Parent Intervening Event, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(e)(ii6.4(g) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 6.4(e)(ii6.4(g) shall be reduced to two (2) Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period.
(f) Notwithstanding anything to the contrary in this Section 6.4, any action, or failure to take action, that is taken by a director or officer of Parent or any of its Subsidiaries in violation of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent.
Appears in 1 contract
Sources: Merger Agreement (Energen Corp)
No Solicitation by Parent. (a) From and after During the date of this AgreementPre-Closing Period, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, not and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any discussion not authorize or negotiations with any Person conducted heretofore by Parent or permit any of its Subsidiaries Representatives to, directly or Representatives indirectly, as applicable, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, except for the purpose of complying with Applicable Law, (iii) grant any waiver or release under any confidentiality, standstill or similar agreement (other than to Company), (iv) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (v) enter into any letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or any other Contract contemplating or otherwise relating to any Acquisition Proposal, (vi) submit any Acquisition Proposal to the vote of any stockholders of Parent or (vii) enter into any other transaction or series of transactions not in the Ordinary Course of Business, the consummation of which would impede, interfere with, prevent or delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Share Contribution or the other Transactions; provided, however, that, notwithstanding anything contained in this Section 6.2(a), prior to the receipt of the Required Parent Stockholder Vote, Parent may furnish non-public information regarding Parent to, and enter into discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal, which the Parent Competing ProposalBoard determines in good faith, after consultation with its independent financial advisor and its outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) such Acquisition Proposal was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of Section 6.2(a); (B) the Parent Board concludes in good faith, based on the advice of outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of the fiduciary duties of the Parent Board under Applicable Law; (C) at least five (5) Business Days prior to furnishing any such non-public information to, or entering into discussions with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish non-public information to, or enter into discussions with, such Person; and (D) at least five (5) Business Days prior to furnishing any such non-public information to such Person, Parent furnishes such non-public information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company). Without limiting the generality of the foregoing, if any of Parent’s Representatives, whether in his, her or its capacity as such or in any other capacity, takes any action that Parent is obligated pursuant to this Section 6.2(a) not to authorize or permit such Representative to take, then Parent shall be deemed for all purposes of this Agreement to have breached this Section 6.2(a). In addition, notwithstanding anything in this Agreement to the contrary, following the receipt of an Acquisition Proposal that was not solicited after the date hereof in contravention of this Section 6.2(a), the Parent Board may contact the Person or Group who has made such Acquisition Proposal solely for the purpose of seeking clarification of the terms and conditions thereof, so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer.
(b) From and after the date of this Agreement, Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not towill, and will use their reasonable best efforts cause its Representatives to, (A) immediately cease and cause to cause be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other Representatives of Parent than the Company and its Subsidiaries not toRepresentatives) to any data room (virtual or actual) containing any non-public information with respect to Parent in connection with an Acquisition Proposal and request from each Person (other than the Company and its Representatives) the prompt return or destruction of all non-public information with respect to Parent previously provided to such Person in connection with an Acquisition Proposal.
(c) Parent shall as soon as reasonably possible (but in any event, directly or indirectly:
within 24 hours) notify Company orally and in writing after receipt by Parent or, to the Knowledge of Parent, by any of Parent’s Representatives, as applicable, of (i) initiateany Acquisition Proposal, solicit(ii) any inquiry, proposeexpression of interest, knowingly encourage, or knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Competing Proposal;
(ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect lead to, relating toan Acquisition Proposal, or in furtherance of a Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
(iii) furnish any non-public information regarding Parent or its Subsidiariesother notice that any Person is considering making an Acquisition Proposal, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
(iv) enter into any letter of intent or agreement in principle, or other agreement providing for a Parent Competing Proposal; or
(v) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 (without conveying, requesting or attempting to gather any other information).
(c) From and after the date of this Agreement, Parent shall promptly (and in any event within the shorter of one Business Day and 48 hours) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to Parent or for access to any of its Subsidiaries made the properties, books or records of Parent by any Person in connection with a Parent Competing Proposal or any Persons other than the Company and its Representatives. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal and (including B) the identity of the Person or Group making any such Person)Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. Parent shall keep the Company fully informed of the status and details of, and Parent any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to the Company promptly (a true, correct and in any event within the shorter of one Business Day and 48 hours) (i) an unredacted complete copy of any such inquiry, expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made in writing provided to Parent or and any of its Subsidiaries or (ii) any such expression of interestamendments, inquirycorrespondence and communications related thereto, proposal or offer with respect to a Parent Competing Proposal if it is not (or any portion thereof is not) made in writing, or a reasonable written summary of the material financial and other terms thereof. Thereafter Parent shall (A) keep the Company reasonably informed, on a prompt basis (and in any event within the shorter of one Business Day and 48 hours), of any material development regarding the status or terms of any such Parent Competing Proposal (including any amendments thereto) or material requests and (B) provide to the Company as soon as practicable after receipt or delivery thereof (and in any event within the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent or its Representatives from any Person.
(d) Except as permitted by Section 6.4(e), Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary,
(i) Parent, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement by applicable U.S. federal securities Laws; provided, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth in Section 8.1(d);
(ii) prior to, but not after, receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises after the date of this Agreement and that did not arise from or in connection with a breach of this Agreement by Parent, Parent may, if the Parent Board or a committee thereof so chooses, effect a Parent Change of Recommendation; provided, however, that such a Parent Change of Recommendation may it is not be made unless and until:
(A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that a Parent Intervening Event has occurred;
(B) the Parent Board determines in good faith, after consultation with its outside legal counsel, that failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law;
(C) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments or revisions to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and
(E) at the end of the four Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith after consultation with its financial advisors and outside legal counsel, that the failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law; provided, that in the event of any material changes regarding any Parent Intervening Event, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(e)(ii) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice periodwriting.
(f) Notwithstanding anything to the contrary in this Section 6.4, any action, or failure to take action, that is taken by a director or officer of Parent or any of its Subsidiaries in violation of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent.
Appears in 1 contract
Sources: Acquisition Agreement (Avalanche Biotechnologies, Inc.)
No Solicitation by Parent. (a) From and after the date of this AgreementAgreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with Section 7.1, except as expressly permitted by this Section 5.5, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any discussion or negotiations with any Person conducted heretofore by Parent or agrees that neither it nor any of its Subsidiaries or Representatives with respect to any inquiryshall, proposal or offer and that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal.
(b) From and after the date of this Agreement, Parent and its officers and directors will it shall not, will and shall cause Parent’s its Subsidiaries and direct its and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
, (i) initiate, solicit, proposeknowingly assist, knowingly encourageinduce or knowingly encourage or facilitate (including by providing information) any inquiries, proposals or offers with respect to, or knowingly facilitate any inquiry the making, submission, announcement or the making of completion of, any proposal or offer that constitutes, or would be reasonably be expected to result inlead to, a Parent Competing Proposal;
Acquisition Proposal or (ii) engage in, continue or otherwise participate in any negotiations or discussions with any Third Party (other than to refer the inquiring Person with respect to or negotiations with this Section 5.5) concerning any Person with respect to, relating to, or in furtherance of a Parent Competing Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a any Parent Competing Acquisition Proposal;
, (iii) furnish or provide or cause to be furnished or provided any non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
(iv) enter into any letter of intent or agreement in principle, or other agreement providing for a Parent Competing Proposal; or
(v) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 (without conveying, requesting or attempting to gather any other information).
(c) From and after the date of this Agreement, Parent shall promptly (and in any event within the shorter of one Business Day and 48 hours) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with with, or for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes of would reasonably be expected to lead to a Parent Competing Proposal Acquisition Proposal, or (iv) resolve or agree to do any request for of the foregoing. Parent agrees that it will, and will cause its Subsidiaries and direct its and their respective Representatives to, (x) immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Parent Acquisition Proposal, (y) deliver a written notice to any such Third Party explicitly stating that Parent is terminating all discussions and negotiations with such Third Party with respect to any Parent Acquisition Proposal, and requesting that such Third Party promptly return or destroy all confidential or proprietary information concerning Parent and its Subsidiaries, and (z) promptly terminate access of any such Third Party to any due diligence or electronic or physical data room with respect to any Parent Acquisition Proposal; provided, that nothing in this Agreement shall restrict Parent from permitting a Representative Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case to the extent necessary to comply with fiduciary duties under applicable Law.
(b) Notwithstanding anything to the contrary in Section 5.5(a), at any time prior to obtaining the Parent relating Stockholder Approval, in response to an unsolicited bona fide written Parent Acquisition Proposal from a Third Party made after the date hereof that (x) did not result from a material breach of Section 5.5(a) or Section 5.5(c) by Parent, any of its Subsidiaries or any of its or their respective Representatives, and (y) Parent Board determines in good faith, after consultation with Parent’s outside legal counsel and its financial advisor, constitutes or may reasonably be expected to lead to a Parent Competing Superior Proposal (including the identity and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to be inconsistent with Parent Board’s fiduciary duties to Parent and its stockholders under applicable Law, Parent and its Representatives may, following receipt of an executed customary confidentiality agreement with nondisclosure provisions that are at least as restrictive of such Person)Third Party as the Confidentiality Agreement (except for such changes specifically necessary in order for Parent to be able to comply with its obligations under this Agreement) and that does not prohibit compliance by Parent with this Section 5.5(b) (i) furnish information with respect to Parent and its Subsidiaries such Third Party making such Parent Acquisition Proposal and (ii) participate in discussions or negotiations with such Third Party and its Representatives regarding such Parent Acquisition Proposal; provided, and that Parent shall provide to the Company promptly (and in no event later than 24 hours after its receipt of such Parent Acquisition Proposal) provide or make available to the Company any material non-public information concerning Parent or any of its Subsidiaries prior to or substantially concurrently with the provision of such information to the Person making such Parent Acquisition Proposal or its Representatives which was not previously provided or made available to the Company. If Parent receives a Parent Acquisition Proposal, then Parent shall promptly (and in no event within later than 24 hours after its receipt of such Parent Acquisition Proposal) notify the shorter Company in writing of one Business Day such Parent Acquisition Proposal (which notification shall include the identity of the Person making or submitting such request or Parent Acquisition Proposal and 48 hours) (i) an unredacted copy of any such expression of interestwritten request or proposal (or, inquiry, proposal or offer with respect to a Parent Competing Proposal made in writing provided to Parent or any of its Subsidiaries or (ii) any such expression of interest, inquiry, proposal or offer with respect to a Parent Competing Proposal is if not (or any portion thereof is not) made in writing, a written summary of the material financial terms and other terms conditions thereof. Thereafter )), together with copies of any proposed transaction agreements, and Parent shall (A) thereafter keep the Company reasonably informedinformed in writing, on a prompt current basis (and and, in any event event, within the shorter of one Business Day and 48 24 hours), of the status of such Parent Acquisition Proposal, including informing the Company of any material development regarding change to the terms of such Parent Acquisition Proposal, and the status or terms of any such Parent Competing Proposal (negotiations, including any amendments thereto) or material requests and (B) provide to the Company change in its intentions as soon as practicable after receipt or delivery thereof (and in any event within the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent or its Representatives from any Personpreviously notified.
(dc) Except as Subject to the permitted actions contemplated by Section 6.4(eclauses (d) and (e) below, and Section 7.1(d)(ii), neither the Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
Board nor any committee thereof shall (i) withdraw, change, qualify, withhold, withdraw, qualify amend or modifymodify in a manner adverse to the Company, or publicly propose or announce any intention to withdraw, change, qualify, withhold, withdraw, qualify amend or modify, modify in a manner adverse to the Company, the Parent Board Recommendation;
, (ii) adopt, approve, recommend, or publicly propose to adopt, approve or recommend, any Parent Acquisition Proposal or Parent Alternative Acquisition Agreement, (iii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve/Prospectus, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) in the event a tender offer that constitutes a Parent Acquisition Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Parent Acquisition Proposal in any solicitation or recommendation statement made on Schedule 14D09 within (10) Business Days of such commencement (and in no event later than one (1) Business Day prior to the date of the Parent Stockholder Meeting, as it may be postponed or adjourned pursuant to Section 5.6(c)) or (v) if requested by the Company, fail to issue, within ten (10) Business Days after a Parent Acquisition Proposal is publicly declare advisable announced (and in no event later than one (1) Business Day prior to the date of the Parent Stockholder Meeting, as it may be postponed or publicly propose adjourned pursuant to Section 5.6(c)), a press release reaffirming the Parent Board Recommendation (any of such action in clauses (i)-(v), a “Parent Adverse Recommendation Change”); (vi) cause or permit Parent or any of its Subsidiaries to enter into, into or agree to any letter of intent, memorandum of understandingunderstanding or similar document, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership or other similar agreement or commitment (other than a confidentiality agreement referred to in Section 5.5(b) entered into in compliance with Section 5.5(b)) relating to a any Parent Competing Acquisition Proposal (a “Parent Alternative Acquisition Agreement”) or (vii) take any action to make the provisions of any anti-takeover or similar statute or regulation inapplicable to any Parent Acquisition Proposal or counterparty thereto; provided, that delivery of a written notice to the Company as contemplated by paragraph (d) below, or public disclosure that such notice has been delivered to the Company, shall not be deemed to constitute a Parent Adverse Recommendation Change or otherwise a violation of this clause (c);.
(vd) Notwithstanding anything to the contrary set forth in the case this Section 5.5, following receipt of a written Parent Competing Acquisition Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of by Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to after the date of this Agreement that did not result from a breach of this Section 5.5 and has not been withdrawn the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day Board may, at any time prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if , make a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant Adverse Recommendation Change and authorize Parent to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent terminate this Agreement to enter into a Parent Alternative Acquisition Agreement (together with respect to such Parent Superior Proposal in accordance with Section 7.1(d)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “following conditions are met prior to making such Parent Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary,Adverse Recommendation Change:
(i) Parentthe Parent Board determines in good faith, directly or indirectly through its Representatives, may after consultation with its the Parent’s outside legal counselcounsel and its financial advisor, make that such disclosures as Parent Acquisition Proposal constitutes a Parent Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the Parent Board or any committee thereof determines in good faith are necessary Board’s fiduciary duties to comply with Rule 14d-9 or Rule 14e-2(a) promulgated its stockholders under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement by applicable U.S. federal securities Laws; provided, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth in Section 8.1(d)Law;
(ii) (A) Parent shall have provided to the Company five Business Days’ prior towritten notice (the “Parent Superior Proposal Notice”), but which shall state expressly (1) that it has received a written Parent Acquisition Proposal that constitutes a Parent Superior Proposal, (2) an unredacted copy of such Parent Acquisition Proposal (or, if not afterin writing, receipt the material terms and conditions thereof including the consideration offered therein and the identity of the Person or group making the Parent Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Parent Stockholder ApprovalAlternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Parent Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Parent Superior Proposal shall require a new notice and an additional two Business Day period) and (3) that, subject to clause (iii) below, the Parent Board has determined to make an Parent Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.1(d)(ii) in order to enter into the Parent Alternative Acquisition Agreement, as applicable and (B) prior to making such Parent Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.1(d)(ii), as applicable, (x) Parent shall have used commercially reasonable efforts to engage in good faith with the Company (to the extent the Company wishes to engage) during such notice period commencing on the delivery of the Parent Superior Proposal Notice, to consider any adjustments proposed by the Company to the terms and conditions of this Agreement such that the Parent Alternative Acquisition Agreement ceases to constitute a Parent Superior Proposal and (y) in determining whether to make a Parent Adverse Recommendation Change or to effect a termination in accordance with Section 7.1(d)(ii), the Parent Board shall have taken into account any changes to the terms of this Agreement proposed by the Company and any other information provided by the Company in response to a Parent Intervening Event that occurs or arises after such notice; and
(iii) following the date end of this Agreement and that did not arise from or such five Business Day period (as such period may be extended in connection accordance with a breach of this Agreement by Parentclause (ii) above), Parent may, if the Parent Board or a committee thereof so choosesshall have determined, effect a Parent Change of Recommendation; provided, however, that such a Parent Change of Recommendation may not be made unless and until:
(A) the Parent Board or a committee thereof determines in good faith faith, after consultation with its financial advisors and outside legal counsel that counsel, that, in light of such Parent Superior Proposal and taking into account any revised terms proposed by the Company, such Parent Superior Proposal continues to constitute a Parent Intervening Event has occurred;Superior Proposal and that the failure to make such Parent Adverse Recommendation Change or to so terminate this Agreement in accordance with Section 7.1(d)(ii), as applicable, would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(Be) Notwithstanding anything to the contrary set forth in this Section 5.5, upon the occurrence of any Parent Intervening Event, the Parent Board may, at any time prior to the Parent Stockholders Meeting, make a Parent Adverse Recommendation Change that is not related to a Parent Acquisition Proposal if all of the following conditions are met:
(i) prior to making such Parent Adverse Recommendation Change, (1) the Parent Board determines in good faith, after consultation with its outside legal counselcounsel and its financial advisor, that that, in light of such Parent Intervening Event, a failure to effect a Parent Adverse Recommendation Change of Recommendation in response would be reasonably expected to such Parent Intervening Event would be inconsistent with the Parent Board’s fiduciary duties owed by to its stockholders under applicable Law, (2) Parent shall have (A) provided to the Company five Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Parent Intervening Event and the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Parent Board has determined to the stockholders of make a Parent under applicable Law;
Adverse Recommendation Change and (CB) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D) after giving such notice and prior to effecting making such a Parent Change of RecommendationAdverse Recommendation Change, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel used commercially reasonable efforts to negotiate) engage in good faith with the Company (to the extent the Company wishes to negotiateengage) during such five Business Day period to make such consider any adjustments or revisions proposed by the Company to the terms and conditions of this Agreement as would permit such that the failure of the Parent Board not to effect make a Parent Adverse Recommendation Change of Recommendation in response theretoto the Parent Intervening Event in accordance with clause (ii) below would no longer reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law; and
(Eii) at following the end of the four such five Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines shall have determined in good faith faith, after consultation with its financial advisors and outside legal counsel, that the failure to effect a Parent Change in light of Recommendation in response to such Parent Intervening Event and taking into account any revised terms proposed by the Company, the failure to make a Parent Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties owed by under applicable Law.
(f) Parent promptly (and in any event within 48 hours) shall advise the Company orally and in writing of (i) any written Parent Acquisition Proposal, (ii) any written request for non-public information relating to Parent or its Subsidiaries, other than requests for information not reasonably expected to be related to a Parent Acquisition Proposal and (iii) any written inquiry or request for discussion or negotiation regarding a Parent Acquisition Proposal, including in each case the identity of the Person making any such Parent Acquisition Proposal, inquiry or request and the material terms of any such Parent Acquisition Proposal, inquiry or request and thereafter shall keep the Company informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(g) Nothing set forth in this Agreement shall prevent Parent or the Parent Board from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from (ii) making any required disclosure to Parent’s stockholders if, in the good faith judgment of the Parent Board, after consultation with outside counsel, failure to disclose such information would reasonably be expected to violate its obligations under applicable Law; provided, however, that in the event case of any material changes regarding any either clause (i) or clause (ii), no such communication or statement that would constitute a Parent Intervening Event, Parent Adverse Recommendation Change shall be required to deliver a new written notice to the Company and to comply permitted, made or taken except in accordance with the requirements of this Section 6.4(e)(ii) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice periodSection 5.5(d).
(fh) Notwithstanding anything to Any breach of the contrary restrictions contained in this Section 6.4, Section 5.5 by any actionof the Parent’s Subsidiaries, or failure to take action, that is taken by a director or officer any Representatives of the Parent or any of its Subsidiaries in violation of this Section 6.4 Subsidiaries, shall be deemed to be a breach of this Section 6.4 Section 5.5 by Parent.
(i) As used in this Agreement:
Appears in 1 contract
No Solicitation by Parent. (a) From Except as expressly permitted by this Section 5.5, Parent shall, shall cause each of its affiliates and after its and their respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their other Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to or may reasonably be expected to lead to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated) or otherwise request, any discussion person that has executed a confidentiality or negotiations with any Person conducted heretofore by Parent or any of its Subsidiaries or Representatives with respect non-disclosure agreement within the 24-month period prior to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal.
(b) From and after the date of this Agreement, Parent and Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not toRepresentatives, and will use their reasonable best efforts to cause (ii) until the other Representatives Effective Time or, if earlier, the termination of Parent and its Subsidiaries not tothis Agreement in accordance with Article VII, not, directly or indirectly:
, (i1) initiate, solicit, propose, knowingly encourage, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiry inquiries regarding, or the making of any proposal or offer that constitutes, or would could reasonably be expected to result inlead to, a Parent Competing Takeover Proposal;
, (ii2) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating toregarding, or in furtherance of a Parent Competing Proposal or furnish to any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
(iii) furnish other person any non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal (other than, solely in response to any Parent Competing Proposal or any an unsolicited inquiry, proposal to refer the inquiring person to this Section 5.5 and to limit its conversation or offer that would reasonably be expected other communication exclusively to lead such referral), or (3) approve, recommend or enter into, or propose to a Parent Competing Proposal;
(iv) approve, recommend or enter into into, any letter of intent or similar document, agreement, commitment or agreement in principleprinciple (whether written or oral, binding or other agreement providing for a Parent Competing Proposal; or
(vnonbinding) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 (without conveying, requesting or attempting to gather any other information).
(c) From and after the date of this Agreement, Parent shall promptly (and in any event within the shorter of one Business Day and 48 hours) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Takeover Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.5(b) or (y) in accordance with Section 7.1(k)). Except to the extent necessary to take any actions that Parent Competing Proposal made on or after any third party would otherwise be permitted to take pursuant to this Section 5.5 (and in such case only in accordance with the date of this Agreementterms hereof), (A) Parent and its Subsidiaries shall not release any request for non-public information third party from, or data relating waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which Parent or any of its Subsidiaries made by is a party or (y) any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (including the identity of such Person), and Parent shall provide to the Company promptly (and confidentiality provision in any event within the shorter of one Business Day and 48 hours) (i) an unredacted copy of any such expression of interest, inquiry, proposal or offer with respect agreement to a Parent Competing Proposal made in writing provided to which Parent or any of its Subsidiaries or (ii) any such expression of interestis a party other than, inquiry, proposal or offer with respect to a Parent Competing Proposal is this clause (y), any confidentiality provision, the waiver, amendment, modification or permission thereof does not, and would not (be reasonably likely to, facilitate, encourage or any portion thereof is not) made in writing, a written summary of the material financial and other terms thereof. Thereafter Parent shall (A) keep the Company reasonably informed, on a prompt basis (and relate in any event within way to a Takeover Proposal or a potential the shorter of one Business Day and 48 hours), of any material development regarding the status or terms of any such Parent Competing Takeover Proposal (including any amendments thereto) or material requests and (B) provide Parent shall, and shall cause its Subsidiaries to, enforce such confidentiality and standstill provisions of any such agreement, and Parent shall, and shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than the Company as soon as practicable after receipt or delivery thereof (and in any event within of the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent or its Representatives from Company’s affiliates, under any Personsuch provisions.
(d) Except as permitted by Section 6.4(e), Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”).
(eb) Notwithstanding anything in this Agreement to the contrary,
(i) Parent, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement by applicable U.S. federal securities Laws; provided, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth contrary contained in Section 8.1(d5.5(a);
(ii) prior to, but not after, receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises if at any time from and after the date of this Agreement and prior to obtaining the Parent Shareholder Approval, Parent or any of its Subsidiaries, or any of its or their Representatives, directly or indirectly receives a bona fide, unsolicited written Takeover Proposal from any person that did not arise result from Parent’s, its affiliates’ or in connection Parent’s or its affiliates’ Representatives’ failure to comply with a breach the provisions of this Agreement by Parent, Parent may, Section 5.5(a) and if the Parent Board or a committee thereof so chooses, effect a Parent Change of Recommendation; provided, however, that such a Parent Change of Recommendation may not be made unless and until:
(A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that a Parent Intervening Event has occurred;
(B) the Parent Board determines in good faith, after consultation with its outside legal counsel, that failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law;
(C) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments or revisions to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and
(E) at the end of the four Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith after consultation with its financial advisors and outside legal counsel, that the failure such Takeover Proposal constitutes or is reasonably likely to effect lead to a Parent Change Superior Proposal, then Parent and any of Recommendation in response its Subsidiaries, and any of its or their Representatives, may, directly or indirectly, (i) furnish, pursuant to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law; providedan Acceptable Confidentiality Agreement, that in the event of any material changes regarding any Parent Intervening Event, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(e)(iiinformation (including non-public information) with respect to such new written noticeParent and its Subsidiaries, except that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period.
(f) Notwithstanding anything and afford access to the contrary in this Section 6.4business, properties, assets, employees, officers, contracts, books and records of Parent and its Subsidiaries, to the person who has made such Takeover Proposal and its Representatives and potential sources of financing; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any action, or failure to take action, that is taken by a director or officer of non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to the Company and (ii) engage in violation of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent.or otherwise participate in discussions or negotiations with the person making such Takeover
Appears in 1 contract
Sources: Merger Agreement (Ensco PLC)
No Solicitation by Parent. (a) From Except as expressly permitted by this Section 5.5, Parent shall, shall cause each of its affiliates and after its and their respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their other Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to or may reasonably be expected to lead to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement, Parent and its officers and directors will, will cause Parent’s Subsidiaries and their respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated) or otherwise request, any discussion person that has executed a confidentiality or negotiations with any Person conducted heretofore by Parent or any of its Subsidiaries or Representatives with respect non-disclosure agreement within the 24-month period prior to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Parent Competing Proposal.
(b) From and after the date of this Agreement, Parent and Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not toRepresentatives, and will use their reasonable best efforts to cause (ii) until the other Representatives Effective Time or, if earlier, the termination of Parent and its Subsidiaries not tothis Agreement in accordance with Article VII, not, directly or indirectly:
, (i1) initiate, solicit, propose, knowingly encourage, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiry inquiries regarding, or the making of any proposal or offer that constitutes, or would could reasonably be expected to result inlead to, a Parent Competing Takeover Proposal;
, (ii2) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating toregarding, or in furtherance of a Parent Competing Proposal or furnish to any inquiry, proposal or offer that would reasonably be expected to lead to a Parent Competing Proposal;
(iii) furnish other person any non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal (other than, solely in response to any Parent Competing Proposal or any an unsolicited inquiry, proposal to refer the inquiring person to this Section 5.5 and to limit its conversation or offer that would reasonably be expected other communication exclusively to lead such referral), or (3) approve, recommend or enter into, or propose to a Parent Competing Proposal;
(iv) approve, recommend or enter into into, any letter of intent or similar document, agreement, commitment or agreement in principleprinciple (whether written or oral, binding or other agreement providing for a Parent Competing Proposal; or
(vnonbinding) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.4 (without conveying, requesting or attempting to gather any other information).
(c) From and after the date of this Agreement, Parent shall promptly (and in any event within the shorter of one Business Day and 48 hours) notify the Company of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to a Takeover Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.5(b) or (y) in accordance with Section 7.1(k)). Except to the extent necessary to take any actions that Parent Competing Proposal made on or after any third party would otherwise be permitted to take pursuant to this Section 5.5 (and in such case only in accordance with the date of this Agreementterms hereof), (A) Parent and its Subsidiaries shall not release any request for non-public information third party from, or data relating waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which Parent or any of its Subsidiaries made by is a party or (y) any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (including the identity of such Person), and Parent shall provide to the Company promptly (and confidentiality provision in any event within the shorter of one Business Day and 48 hours) (i) an unredacted copy of any such expression of interest, inquiry, proposal or offer with respect agreement to a Parent Competing Proposal made in writing provided to which Parent or any of its Subsidiaries or (ii) any such expression of interestis a party other than, inquiry, proposal or offer with respect to a Parent Competing Proposal is this clause (y), any confidentiality provision, the waiver, amendment, modification or permission thereof does not, and would not (be reasonably likely to, facilitate, encourage or any portion thereof is not) made in writing, a written summary of the material financial and other terms thereof. Thereafter Parent shall (A) keep the Company reasonably informed, on a prompt basis (and relate in any event within way to a Takeover Proposal or a potential the shorter of one Business Day and 48 hours), of any material development regarding the status or terms of any such Parent Competing Takeover Proposal (including any amendments thereto) or material requests and (B) provide Parent shall, and shall cause its Subsidiaries to, enforce such confidentiality and standstill provisions of any such agreement, and Parent shall, and shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than the Company as soon as practicable after receipt or delivery thereof (and in any event within of the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided to Parent or its Representatives from Company’s affiliates, under any Personsuch provisions.
(d) Except as permitted by Section 6.4(e), Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement;
(iii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Parent Competing Proposal;
(iv) publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement (together with any of the actions set forth in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi), a “Parent Change of Recommendation”).
(eb) Notwithstanding anything in this Agreement to the contrary,
(i) Parent, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement by applicable U.S. federal securities Laws; provided, however, that if such disclosure has the effect of withdrawing or adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth contrary contained in Section 8.1(d5.5(a);
(ii) prior to, but not after, receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises if at any time from and after the date of this Agreement and prior to obtaining the Parent Shareholder Approval, Parent or any of its Subsidiaries, or any of its or their Representatives, directly or indirectly receives a bona fide, unsolicited written Takeover Proposal from any person that did not arise result from Parent’s, its affiliates’ or in connection Parent’s or its affiliates’ Representatives’ failure to comply with a breach the provisions of this Agreement by Parent, Parent may, Section 5.5(a) and if the Parent Board or a committee thereof so chooses, effect a Parent Change of Recommendation; provided, however, that such a Parent Change of Recommendation may not be made unless and until:
(A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that a Parent Intervening Event has occurred;
(B) the Parent Board determines in good faith, after consultation with its outside legal counsel, that failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law;
(C) Parent provides the Company written notice of such proposed action and the basis therefore four Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description of the facts and circumstances of the Parent Intervening Event;
(D) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to make such adjustments or revisions to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation in response thereto; and
(E) at the end of the four Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith after consultation with its financial advisors and outside legal counsel, that the failure such Takeover Proposal constitutes or is reasonably likely to effect lead to a Parent Change Superior Proposal, then Parent and any of Recommendation in response its Subsidiaries, and any of its or their Representatives, may, directly or indirectly, (i) furnish, pursuant to such Parent Intervening Event would be inconsistent with the fiduciary duties owed by the Parent Board to the stockholders of Parent under applicable Law; providedan Acceptable Confidentiality Agreement, that in the event of any material changes regarding any Parent Intervening Event, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(e)(iiinformation (including non-public information) with respect to such new written noticeParent and its Subsidiaries, except that the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Days; provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period.
(f) Notwithstanding anything and afford access to the contrary in this Section 6.4business, properties, assets, employees, officers, contracts, books and records of Parent and its Subsidiaries, to the person who has made such Takeover Proposal and its Representatives and potential sources of financing; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any action, or failure to take action, that is taken by a director or officer of non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to the Company and (ii) engage in violation or otherwise participate in discussions or negotiations with the person making such Takeover Proposal and its Representatives and potential sources of financing regarding such Takeover Proposal. As used in this Section 5.5, “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less restrictive to the third party executing such agreement in the aggregate than those applicable to the Company that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the provisions of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent5.5.
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No Solicitation by Parent. (a) From and after the date of this AgreementAgreement and until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, Parent and its officers and directors will, and will cause Parent’s Subsidiaries and its and their controlled Affiliates and respective officers and directors to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately cease, and cause to be terminated, any solicitation of, discussion or negotiations with any Person conducted heretofore by Parent or any of its Subsidiaries Subsidiaries, their respective controlled Affiliates or Representatives with respect to any inquiry, proposal or offer that relates to, constitutes, or would could reasonably be expected to lead to, a Parent Competing Proposal. Parent shall, promptly following the execution and delivery of this Agreement, terminate any access any such Persons may have to any physical or electronic data room relating to any potential Parent Competing Proposal.
(b) From and after the date of this AgreementAgreement and until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, Parent and its officers and directors will not, and will cause Parent’s Subsidiaries and its and their respective controlled Affiliates and respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries not to, directly or indirectly:
(i) initiate, solicit, seek, propose, knowingly encourage, or knowingly facilitate (including by way of furnishing non-public information) any inquiry regarding the making, submission or announcement by any Person (other than the making Company or its Subsidiaries) of any proposal or offer, including any proposal or offer to Parent’s stockholders, that constitutes, or would could reasonably be expected to result inlead to, a Parent Competing Proposal;
(ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating to, or in furtherance of a Parent Competing Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Parent Competing Proposal;
(iii) furnish or afford access to any material non-public information regarding Parent or its Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, Subsidiaries to any Person (other than the Company and its Subsidiaries) in connection with with, for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, or in response to any Parent Competing Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to a Parent Competing Proposal;
(iv) approve, adopt, recommend, agree to or enter into, or propose to approve, adopt, recommend, agree to or enter into, any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Parent Alternative Acquisition Agreement;
(v) enter into any letter of intent intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement or duly execute any other agreement in principle(whether binding or not) with respect to any inquiry, proposal or offer that constitutes, or other agreement providing for could reasonably be expected to lead to, a Parent Competing Proposal; orProposal or that would require, or would reasonably be expected to require Parent to abandon, terminate or fail to consummate the Integrated Mergers or any other transaction contemplated by this Agreement;
(vvi) waive or release any Person from, forebear in the enforcement of, or amend or terminate any standstill agreement or any standstill provisions of any other contract; provided that if Parent (acting under the direction of the Parent Board) determines in good faith after consultation with Parent’s outside legal counsel that the failure to waive a particular standstill provision would be inconsistent with the relevant directors’ fiduciary duties under applicable Law, then Parent may waive such standstill provision, solely to the extent necessary to permit a third party to make and pursue a non-public Parent Competing Proposal that Parent reasonably believes is likely to lead to a Parent Superior Proposal;
(vii) submit any Parent Competing Proposal to the vote of the stockholders of Parent; provided, that notwithstanding or
(viii) resolve or agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Parent Stockholder Approval, Parent or any of its Representatives may, :
(i) provide information in response to a request therefor by a Person who has made an inquiry unsolicited bona fide written Parent Competing Proposal or any inquiry, proposal or offer with respect to (or that could reasonably be expected to lead to) a Parent Competing Proposal after the date hereof that did not result from a third party, inform a third party or its Representative of the restrictions imposed by the provisions breach of this Section 6.4 if Parent receives from the Person so requesting such information an Acceptable Confidentiality Agreement, it being understood that such Acceptable Confidentiality Agreement need not prohibit the making, or amendment, of a Parent Competing Proposal and shall not prohibit compliance by Parent with this Section 6.4, and Parent shall promptly (without conveyingand, requesting in any event, within 24 hours) disclose and provide copies of such Acceptable Confidentiality Agreement and any such information provided to such Person to the Company to the extent not previously provided to the Company; or
(ii) engage or attempting participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Parent Competing Proposal after the date hereof that did not result from a breach of this Section 6.4; in each case, if and only to gather the extent that, prior to taking any action described in Section 6.4(c)(i) or Section 6.4(c)(ii), (A) Parent provides the notice to the Company required by Section 6.4(d) and the Parent Board determines in good faith after consultation with its outside legal counsel that failure to take such action in light of the Parent Competing Proposal or such other information)inquiry, proposal or offer, as applicable, would be inconsistent with the Parent Board’s fiduciary duties under applicable law, and (B) the Parent Board has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel that such Parent Competing Proposal either constitutes a Parent Superior Proposal or is reasonably likely to result in a Parent Superior Proposal, provided that, notwithstanding anything to the contrary in this Section 6.4, if Parent receives any Parent Competing Proposal or any inquiry, proposal or offer with respect to (or that could reasonably be expected to lead to) a Parent Competing Proposal, Parent may seek clarification of the terms and conditions thereof so as to determine whether such Parent Competing Proposal or any inquiry, proposal or offer with respect to (or that could reasonably be expected to lead to) a Parent Competing Proposal constitutes a Parent Superior Proposal or is reasonably likely to result in a Parent Superior Proposal.
(cd) From and after the date of this Agreement, Parent shall promptly (and in any event event, within the shorter of one Business Day and 48 24 hours) notify the Company in writing of the receipt by Parent (directly or indirectly) of any Parent Competing Proposal or any expression of interest, inquiry, proposal or offer with respect to (or that could reasonably be expected to lead to) a Parent Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with (or that could reasonably be expected to lead to) a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to (or that could reasonably be expected to lead to) a Parent Competing Proposal (including the identity of such Person)Proposal, and Parent shall provide to notify the Company promptly (and in any event within of the shorter identity of one Business Day and 48 hours) (i) an unredacted copy of any the Person making or submitting such expression of interestrequest, inquiry, proposal or offer with respect and provide to the Company (i) a Parent Competing Proposal copy of any such request, inquiry, proposal or offer made in writing provided to Parent or any of its Subsidiaries or any of its and their respective Representatives or (ii) if any such expression of interestrequest, inquiry, proposal or offer with respect to a Parent Competing Proposal is not (or any portion thereof is not) made in writing, a written summary of such request, proposal or offer (including the material financial terms and other terms conditions thereof), in each case together with copies of any proposed transaction agreements. Thereafter Parent shall (A) keep the Company reasonably informed, informed in writing on a prompt current basis (and and, in any event event, within the shorter of one Business Day and 48 twenty-four (24) hours), of any ) regarding material development regarding changes to the status or terms of any such Parent Competing Proposal requests, inquiries, proposals or offers (including any amendments or changes thereto, which, for the avoidance of doubt, shall include (among other things) or material requests and (B) provide any changes to the form or amount of consideration) and shall reasonably apprise the Company as soon as practicable after receipt or delivery thereof (and of the status of any such negotiations to the extent the status changes in any event within material respect. Without limiting the shorter of one Business Day and 48 hours) copies of all material written correspondence and other material written materials provided foregoing, Parent shall notify the Company if Parent determines to engage in discussions or negotiations concerning a Parent or its Representatives from any PersonCompeting Proposal.
(de) Except as expressly permitted by this Section 6.4(e)6.4, neither the Parent and its officers and directors will not, will cause Parent’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause Board nor any committee of the other Representatives of Parent and its Subsidiaries not to, directly or indirectlyBoard shall:
(i) withhold, withdraw, qualify or modify, or publicly propose or announce any intention to withhold, withdraw, qualify or modify, in a manner adverse to the Company, the Parent Board Recommendation;
(ii) fail to include the Parent Board Recommendation in the Joint Proxy Statement/Prospectus;
(iii) fail to publicly announce, within ten (10) Business Days after a tender offer or exchange offer relating to the equity securities of Parent shall have been commenced by any third party other than the Company and its Affiliates (and in no event later than one (1) Business Day prior to the date of the Parent Stockholders Meeting, as it may be postponed or adjourned in accordance with the terms of this Agreement), a statement disclosing that the Parent Board recommends rejection of such tender or exchange offer (for the avoidance of doubt, the taking of no position or a neutral position by the Parent Board in respect of the acceptance of any such tender offer or exchange offer as of the end of such period shall constitute a failure to publicly announce that the Parent Board recommends rejection of such tender or exchange offer);
(iv) if requested by the Company, fail to issue, within five (5) Business Days after a Parent Competing Proposal is publicly announced (and in no event later than one (1) Business Day prior to the date of the Parent Stockholders Meeting, as it may be postponed or adjourned in accordance with the terms of this Agreement), a press release reaffirming the Parent Board Recommendation, which request may not be made more than two times in respect of any specific Parent Competing Proposal;
(v) approve, endorse recommend or recommend, declare advisable (or publicly propose or announce any intention to approve, endorse or recommend, do so) any Parent Competing Proposal;
(ivvi) publicly declare advisable approve, adopt, recommend, agree to or publicly enter into, or propose or resolve to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.4(b)) relating to a Parent Competing Proposal (a “Parent Alternative Acquisition Agreement”);
(v) in the case of a Parent Competing Proposal that is structured as a tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Parent Class A Common Stock (other than by the Company or an Affiliate of the Company), fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against acceptance of such tender offer or exchange offer by its stockholders on or prior to the earlier of (A) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after commencement of such tender offer or exchange offer if commenced on or after the third Business Day prior to the date of the Parent Stockholders Meeting) or (B) ten Business Days (as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer;
(vi) if a Parent Competing Proposal shall have been publicly announced or disclosed (other than pursuant to the foregoing clause (v)), fail to publicly reaffirm the Parent Board Recommendation on or prior to the earlier of (A) five Business Days after the Company so requests in writing or (B) three Business Days prior to the date of the Parent Stockholders Meeting (or promptly after announcement or disclosure of such Parent Competing Proposal if announced or disclosed on or after the third Business Day prior to the date of the Parent Stockholders Meeting); or
(vii) cause or permit Parent to enter into a Parent Alternative Acquisition Agreement Agreement; or
(viii) publicly propose to do any of the foregoing (together with any of the actions set forth in the foregoing clauses (i), ) though (ii), (iii), (iv), (v) and (vivii), a “Parent Change of Recommendation”).
(ef) Notwithstanding anything in this Agreement to the contrary,, prior to the receipt of the Parent Stockholder Approval:
(i) Parentthe Parent Board may, directly or indirectly through its Representatives, may after consultation with its outside legal counsel, make such disclosures as the Parent Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Joint Proxy Statement Statement/Prospectus by applicable U.S. federal securities Laws; provided, however, that if such disclosure by the Parent Board has the effect of withdrawing or materially and adversely modifying the Parent Board Recommendation, such disclosure shall be deemed to be a Parent Change of Recommendation and the Company shall have the right to terminate this Agreement as set forth in Section 8.1(d8.1(d)(i);
(ii) prior toin response to a bona fide written Parent Competing Proposal from a third party that has not been withdrawn, but was received after the date hereof, was not after, receipt solicited at any time following the execution of this Agreement and did not result from a breach of the obligations set forth in this Section 6.4, the Parent Stockholder Approval, Board may (x) effect a Parent Change of Recommendation or (y) terminate this Agreement pursuant to Section 8.1(c)(ii) in response to a Parent Intervening Event that occurs or arises after the date of this Agreement and that did not arise from or in connection with a breach of this Agreement by Parent, Parent may, if the Parent Board or a committee thereof so chooses, effect a Parent Change of RecommendationSuperior Proposal; provided, however, that such a Parent Change of Recommendation or termination of this Agreement, as applicable, may not be made unless and until:
(A) the Parent Board or a committee thereof determines in good faith after consultation with its financial advisors and outside legal counsel that such Parent Competing Proposal is a Parent Intervening Event has occurredSuperior Proposal;
(B) the Parent Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event Superior Proposal would be inconsistent with the fiduciary duties owed by of the Parent Board to the stockholders of Parent directors under applicable Law;
(C) Parent provides the Company written notice of such proposed action and the basis therefore four (4) Business Days in advance, which notice shall set forth in writing that the Parent Board or a committee thereof intends to consider whether to take such action and includes a reasonably detailed description action, shall include the identity of the facts Person making such Parent Competing Proposal and circumstances shall contain a copy of such proposal and a draft of the Parent Intervening Eventdefinitive agreement to be entered into in connection therewith (or, if not in writing, a written summary of the material terms and conditions thereof);
(D) after giving such during the four (4) Business Day period commencing on the date of the Company’s receipt of the notice and prior specified in clause (C) above (subject to effecting such Parent Change of Recommendationany applicable extensions), Parent negotiates (and causes its officers, employees, financial advisor and advisors, outside legal counsel and other Representatives to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate) to permit the Company to make such adjustments adjustments, amendments or revisions to the terms of this Agreement as would permit so that the Parent Board not Competing Proposal that is the subject of the notice specified in clause (C) above ceases to effect be a Parent Change of Recommendation in response thereto; andSuperior Proposal;
(E) at the end of the four (4) Business Day period, prior to taking action to effect a Parent Change of Recommendation, the Parent Board or a committee thereof takes into account any adjustments binding irrevocable adjustments, amendments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the noticenotice specified in clause (C) above, and determines in good faith after consultation with its financial advisors and outside legal counsel, that the Parent Competing Proposal remains a Parent Superior Proposal and that the failure to effect a Parent Change of Recommendation in response to such Parent Intervening Event Superior Proposal would be inconsistent with the fiduciary duties owed by of the Parent Board to the stockholders of Parent directors under applicable Law; provided, provided that in the event of if there is any material changes regarding any development with respect to or material modification of such Parent Intervening EventCompeting Proposal, Parent shall, in each case, be required to deliver to the Company an additional notice consistent with that described in clause (C) above and a new negotiation period under clause (D) above shall commence (except that the original four (4) Business Day notice period referred to in clause (C) above shall instead be equal to the longer of (1) two (2) Business Days and (2) the period remaining under the first and original four (4) Business Day notice period of clause (C) above, during which time Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of clause (D) above and this Section 6.4(e)(ii) clause anew with respect to such new written notice, except that additional notice (but substituting the advance written notice obligation set forth in this Section 6.4(e)(ii) shall be reduced to two Business Daystime periods therein with the foregoing extended period)); provided, further, that any such new written notice shall in no event shorten the original four Business Day notice period.and
(fF) Notwithstanding anything to in the contrary in this Section 6.4, any action, or failure to take action, that is taken by a director or officer of Parent or any of its Subsidiaries in violation of this Section 6.4 shall be deemed to be a breach of this Section 6.4 by Parent.
Appears in 1 contract