No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing Transaction"); (ii) participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement. (A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act. (b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 2 contracts
Sources: Merger Agreement (Conestoga Enterprises Inc), Merger Agreement (Conestoga Enterprises Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Parent or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 4.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
(Ab) will result in terms which are more favorable from a financial point of view Notwithstanding the foregoing sentence or anything to the holders contrary in this Agreement, if the Company receives (in the absence of any violation of this Section 4.2) a bonafide, unsolicited written proposal or offer for a Competing Transaction prior to the receipt of the Company Shares than Shareholder Approval and that has not been withdrawn, which the Merger Board of Directors, acting reasonably and the other transactions contemplated by this Agreement and, in good faith (after consultation with counselthe Company’s outside legal counsel and financial advisor), determines (1) by majority vote (excluding any members of the Board of Directors that failure are not independent of the Third Parties making such offer for a Competing Transaction) is superior to take the terms of this Agreement taking into consideration all of the following: (x) the financial terms of the proposed Competing Transaction, (y) the proposed timing of the Competing Transaction and (z) the likelihood that such action may result Competing Transaction will be consummated (a “Superior Competing Transaction”) and (2) that taking any or all of the following actions is necessary in a breach of order to comply with its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction")Law, then the Company may, prior to obtaining the Company Shareholder Approval, in response to an such unsolicited request therefor proposal or offer and subject to compliance with this Section 6.2(b)4.2, furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided that the Company shall have delivered not provide any non-public information to Parent prior written notice that it intends any such Third Party unless the Company provides such non-public information pursuant to take such actiona nondisclosure agreement at least as restrictive as the Confidentiality Agreement (defined below). The Nothing contained in this Agreement shall prevent the Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act, (ii) making any disclosure to the Company’s shareholders required by applicable Law, rule or regulation, or (iii) otherwise making such Third Party submits an unsolicited Competing Transaction disclosure to the Company’s shareholders or otherwise that the Board of Directors believes, (after consultation with its counsel) concludes in its good faith judgmentis necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
(c) Subject to subparagraph (d) below, is reasonably likely to result in if the Board of Directors determines that it has received a proposal for a Superior Competing Transaction and reasonably determines in good faith (after consultation with counsel, determines the Company’s outside counsel and financial advisors) that failure taking any or all of the following actions is necessary in order to take such action may result in a breach of comply with its fiduciary duties under applicable law Law, and provided, that neither the Company nor any representative of the Company is and would not as a result be in breach of any of the provisions of this Section 4.2, the Company and the Board of Directors may, prior to obtaining the Company Shareholder Approval, (i) withdraw, modify or change the Board of Director’s approval or recommendation of this Agreement or the Merger, (ii) approve or recommend to the Company’s shareholders such Superior Competing Transaction, (iii) terminate this Agreement in accordance with Section 6.4(ii), and/or (iv) publicly announce the Board of Director’s intention to do any or all of the foregoing; provided, that in any such event the Company shall timely pay any amounts owing to Parent as a result thereof pursuant to Section 6.5.
(d) The Company shall not take any of the actions referred to in Section 4.2(b) and the Board of Directors shall not take any of the actions referred to in Section 4.2(c) unless (i) the Company Shareholder Approval has not yet been obtained and (ii) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives which written notice shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) state the material terms and conditions of such the applicable Superior Competing Transaction. The parties hereto agree that, in the event any such written notice is delivered pursuant hereto, before the Company will takes any action referred to in Section 4.2(c), Parent shall be provided with three business days from the date of delivery of such notice to agree to make adjustments to the terms and conditions of this Agreement, and the Company shall negotiate in good faith with respect thereto, to match or improve upon the economic or other terms of the purportedly Superior Competing Transaction. In addition, the Company shall notify Parent as promptly as reasonably practicable, and use its best efforts to provide such notice within one business day, following receipt by the Company (or any of its advisors) of any proposal for a Competing Transaction or any written request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries by any Third Party that indicates it may be considering making, or has made, a proposal for a Competing Transaction (including the material terms and conditions of any such proposal, indication of interest or request relating to a Competing Transaction). The Company shall keep Parent reasonably informed informed, on a current basis basis, of the status and material details of any such proposal, indication or request (and any modification or amendment thereof), including of any meeting of its Board of Directors (or any committee thereof) at which its Board of Directors (or such committee) is reasonably expected to consider any Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely mannerTransaction.
Appears in 2 contracts
Sources: Merger Agreement (Netmanage Inc), Merger Agreement (Micro Focus (US), Inc.)
No Solicitation of Transactions. (a) The Each of the Company agrees thatand Parent shall, as of and shall cause its officers, directors, auditors, attorneys and financial advisors (each, a “Representative”) and any other agents to, immediately cease any discussions, negotiations or communications with any party or parties that commenced prior to the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore Agreement with respect to any Competing Transaction (as defined below)Proposal. The As used in this Agreement, a “Competing Proposal” means, with respect to the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission ofParent, any proposal or offeroffer (other than this Agreement and the Merger), whether in writing or otherwise, from any person Person or group (as defined in Section 13d-3 of the Exchange Act) other than than, in the case of the Company, Parent, Newco Merger Sub or any affiliates Affiliates thereof, and in the case of Parent, the Company or any Affiliates thereof (a "“Third Party") ”), to acquire (i) assets that constitute or account for five percent (5%) or more of the consolidated net revenues, consolidated net income or consolidated assets of the Company or Parent, as the case may be, or (ii) beneficial ownership (as defined in Rule 13d-3 under Rule 13(d) of the Exchange Act) of all or more than five percent (5% of the assets of the Company and its subsidiaries, taken as a whole%), or with respect to any such Person or group that has beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of at least five percent (5% %) or more of any class of equity securities of the Company or Parent, as the case may be, as of the date hereof, an additional amount which would increase such ownership by one percent (1%) or more, of any class of equity securities of the Company or Parent, as the case may be, in each case pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions.
(b) During the Interim Period, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets each of the Company and Parent shall not, nor shall either authorize or permit any of its Subsidiariesor its Subsidiaries respective Representatives to, taken as a whole(i) solicit, initiate or encourage, or 5% otherwise facilitate, directly or more of indirectly, any class of equity securities of inquiries relating to, or the Company (a "submission of, any Competing Transaction"); Proposal, (ii) participate in directly or indirectly solicit, initiate, encourage or otherwise facilitate any discussions or negotiations regardingregarding any Competing Proposal, or (iii) furnish to any person Third Party any information or data with respect to for the purpose of encouraging or facilitating, or, except as required by applicable Law, provide access to the properties properties, offices, books, records, officers, directors or employees of, or take any other action to knowingly knowingly, directly or indirectly, solicit, initiate, intentionally encourage, participate in or otherwise facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or Proposal, (iiiiv) enter into any agreement with respect to a Competing Proposal, or (v) waive any Competing Transactionbenefits of, approve or recommend or resolve agree to approve or recommend modify in any Competing Transaction or enter into any agreement requiring it respect, or, subject to abandonthe terms hereof, terminate or fail to consummate enforce, or consent to any matter with respect to which consent is required under, any standstill or similar contract, agreement or arrangement to which the Merger and Company or any of its Subsidiaries, or Parent or any of its Subsidiaries, as the other transactions contemplated case may be, is a party with respect to any class of equity securities. Without limiting the generality of the foregoing, it is understood that any violation of any of the restrictions set forth in this Section 5.3 by any Representative of the Company or any of its Subsidiaries, or Parent or any of its Subsidiaries, shall be deemed to be a breach of this AgreementSection 5.3 by the Company or Parent, respectively.
(Ac) will Notwithstanding the foregoing, if, prior to obtaining the Company Required Vote, (i) the Company has complied with this Section 5.3, and (ii) the Company Board of Directors reasonably determines in good faith that a Competing Proposal that did not result from a breach or deemed breach of this Agreement constitutes a Superior Competing Proposal (as such term is defined below), then, to the extent that a majority of the members of the Company Board of Directors determines in good faith, after consultation with the Company’s outside counsel, that the failure to do so could reasonably be expected to constitute a breach by the Company Board of Directors of its fiduciary duties to the holders of Company Common Stock under Law or writ, judgment, injunction, consent, order, decree, stipulation, award or executive order of or by any Governmental Entity (each, an “Order”), the Company may, subject to the Company’s providing prompt (but in any event at least twenty-four (24) hours) prior written notice to Parent of its decision to take such action and compliance by the Company with Section 5.3(f), furnish information with respect to the Company to, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to a confidentiality agreement not materially less favorable to the Company than the Confidentiality Agreement (as defined in Section 6.4(b) hereof), provided that all such information not already provided to Parent is provided to Parent prior to or as soon as reasonably practicable (but in any event within twenty-four (24) hours) after it is provided to such Third Party.
(d) Notwithstanding subsections 5.3(a) and (b) above, if (i) Parent has complied with this Section 5.3, and (ii) the Parent Board of Directors reasonably determines in good faith that a Competing Proposal that did not result from a breach or deemed breach of this Agreement constitutes a Superior Competing Proposal (as such term is defined below), then, to the extent that a majority of the members of the Parent Board of Directors determines in good faith, after consultation with Parent’s outside counsel, that the failure to do so could reasonably be expected to constitute a breach by the Parent Board of Directors of its fiduciary duties to the holders of Parent Common Stock under Law or writ, judgment, injunction, consent, order, decree, stipulation, award or executive order of or by any Governmental Entity (each, an “Order”), Parent may, subject to Parent providing prompt (but in any event at least twenty-four (24) hours) prior written notice to Company of its decision to take such action and compliance by Parent with Section 5.3(g), furnish information with respect to Parent, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to a confidentiality agreement not materially less favorable to Parent than the Confidentiality Agreement, provided that all such information not already provided to the Company is provided to Company prior to or as soon as reasonably practicable (but in any event within twenty-four (24) hours) after it is provided to such Third Party.
(e) For purposes of this Agreement, “Superior Competing Proposal” shall mean a bona fide, unsolicited written proposal or offer made by a Third Party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, sale of shares of stock, sale of assets, merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction, more than 50% of the capital stock of the Company or Parent, as the case may be, then outstanding (including the capital stock of the Company or Parent, as the case may be, then owned of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by such Third Party) or more than 50% of the consolidated total assets of the Company and its Subsidiaries, or Parent and its Subsidiaries, as the case may be, (i) on terms which the Company’s Board of Directors or Parent’s Board of Directors, as the case may be, determines in good faith (after consulting Parent’s outside legal counsel and financial advisor), taking into account, among other things, all legal, financial, regulatory, timing and other aspects of the offer and the Third Party making the offer, are more favorable from a financial point of view to the holders of Company Shares Common Stock or Parent Common Stock, as the case may be, than the Merger and the other transactions contemplated by this Agreement andTransactions, after consultation with counsel, determines that failure to take (ii) such action may result in a breach of its fiduciary duties under applicable laws; and (B) Competing Proposal is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiryconsummated, and (iii) the material terms and conditions of financing for such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry Proposal, if required, has been committed in a timely mannerwriting.
Appears in 2 contracts
Sources: Merger Agreement (Tutogen Medical Inc), Merger Agreement (Regeneration Technologies Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Parent or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 6.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
(Ab) will Notwithstanding the foregoing sentence or anything to the contrary in this Agreement, if the Company receives (in the absence of any violation of this Section 6.2) a bona fide, unsolicited written proposal or offer for a Competing Transaction prior to the receipt of the Company Shareholder Approval and that has not been withdrawn, which the Special Committee, acting reasonably and in good faith (after consultation with the Company’s outside legal counsel and financial advisor), determines by majority vote (excluding any members of the Special Committee that are not independent of the Third Parties making such offer for a Competing Transaction) (i) is reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement andMerger, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (Bii) is reasonably capable of being consummated (provided that the Company, including the Board within a reasonable period of Directorstime, and any of its advisors shall be permitted to contact such Third Party and its advisors solely (iii) for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable which financing, to the Companyextent required, in all material respects, than the confidentiality agreement with Parent is committed (each if amended or restated a "“Superior Competing Transaction"”), then the Company may, in response to an such unsolicited request therefor proposal or offer and subject to compliance with this Section 6.2(b)6.2, furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided the Company shall not provide any non-public information to any such Third Party unless the Company provides such non-public information pursuant to a nondisclosure agreement at least as restrictive as the Confidentiality Agreement (defined below) or any such other agreement binding on Parent or Newco. The Company shall be permitted to waive the provisions of any “standstill” agreement between the Company and a Third Party to the extent necessary to permit such Third Party to submit a Competing Transaction that the Special Committee believes, in its good faith judgment (after consultation with its legal counsel and financial advisors), is reasonably likely to result in a Superior Competing Transaction. Nothing contained in this Agreement shall prevent the Special Committee or the Board of Directors from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule l4e-2 promulgated under the Exchange Act, (ii) making any disclosure to the Company’s shareholders required by applicable Law, rule or regulation, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Board of Directors (after consultation with its counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
(c) Subject to subparagraph (d) below, if the Special Committee determines that it has received a proposal for a Superior Competing Transaction and reasonably determines in good faith (after consultation with the Company’s outside counsel and financial advisors) that taking any or all of the following actions is necessary in order to comply with its fiduciary duties under applicable Law, and provided, that neither the Company nor any representative of the Company is and would not as a result be in breach of any of the provisions of this Section 6.2, the Company and the Special Committee may (i) withdraw, modify or change the Special Committee’s approval or recommendation of this Agreement or the Merger, (ii) approve or recommend to the Company’s shareholders such Superior Competing Transaction, (iii) terminate this Agreement in accordance with Section 8.4(ii), and/or (iv) publicly announce the Special Committee’s intention to do any or all of the foregoing; provided, that in any such event the Company shall timely pay any amounts owing to Parent as a result thereof pursuant to Section 8.5.
(d) The Company shall not take any of the actions referred to in Section 6.2(b) and the Special Committee shall not take any of the actions referred to in Section 6.2(c) unless the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to advising Parent prior written notice that it intends to take such action, which written notice shall state the material terms and conditions of the applicable Superior Competing Transaction and the identity of the applicable Third Party (including therein the ultimate beneficial owner thereof if the Third Party is an entity and such information is known to the Company), and shall be accompanied by any written materials and correspondence (or a summary of any oral communications) from or to such Third Party or its advisors with respect to the purportedly Superior Competing Transaction. The parties hereto agree that, in the event any such written notice is delivered pursuant hereto, before the Company takes any action referred to in Section 6.2(b) or the Special Committee takes any action referred to in Section 6.2(c), Parent shall be provided with three business days from the date of delivery of such notice to agree to make adjustments to the terms and conditions of this Agreement, and the Company shall negotiate in good faith with respect thereto, to match or improve upon the economic or other terms of the purportedly Superior Competing Transaction. In addition, the Company shall notify Parent as promptly as reasonably practicable, and use its reasonable best efforts to provide such notice within one business day, following receipt by the Company (or any of its advisors) of any proposal for a Competing Transaction or any written request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries by any Third Party that indicates it may be considering making, or has made, a proposal for a Competing Transaction (including the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) the material terms and conditions of any such proposal, indication of interest or request relating to a Competing Transaction). The Company will shall keep Parent reasonably informed informed, on a current basis basis, of the status and material details of any such proposal, indication or request (and any modification or amendment thereof), including of any meeting of its Board of Directors (or any committee thereof) at which its Board of Directors (or such committee) is reasonably expected to consider any Competing Transaction Transaction.
(including amendments e) The Company shall not take any action to exempt any Person (other than Parent and proposed amendmentsNewco) proposal from the restrictions on “business combinations” contained in Section 302A.673 of Minnesota Law (or inquiry any similar provisions) or otherwise cause such restrictions not to apply unless such actions are taken after a termination of this Agreement in a timely manneraccordance with Section 8.3(iii) or (iv) or Section 8.4(ii).
Appears in 2 contracts
Sources: Merger Agreement (Corvu Corp), Merger Agreement (Rocket Software Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementNovember 21, 2001, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company RepresentativesCOMPANY REPRESENTATIVES"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third PartyTHIRD PARTY") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing TransactionCOMPETING TRANSACTION"); (ii) participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement agreement; or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.. 41
(A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing TransactionSUPERIOR COMPETING TRANSACTION"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, ; and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 1 contract
Sources: Agreement and Plan of Merger (D&e Communications Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), and its Subsidiaries to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any Subsidiary to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 520% of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 520% of the assets of the Company and its Subsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company (a "“Competing Transaction"”); (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
. Notwithstanding the foregoing sentence, if the Company receives a bona fide, written proposal or offer for a Competing Transaction by a Third Party, which the Board of Directors determines in good faith (after consulting the Board of Directors’ independent financial advisor) (A) will is reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "consummation)(a “Superior Competing Transaction"”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided that the Company shall have delivered not provide any non-public information to Parent prior written notice any such Third Party unless the Company provides such non-public information pursuant to a nondisclosure agreement with terms that it intends are at least as restrictive as those pursuant to take the Confidentiality Agreement (as defined below) and concurrently provides such actioninformation to Newco. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in waive the provisions of any “standstill” agreement between the Company and a manner adverse to Parent, its recommendation Third Party to the holders of the Company Shares, but only if (i) extent necessary to permit such Third Party submits an unsolicited to submit a Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 l4e-2 promulgated under the Exchange ActAct or from making any disclosure to its shareholders required by applicable law, rule or regulation or by the rules of the American Stock Exchange.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any proposal for a Competing Transaction received by any officer or director of the Company or, to the knowledge Knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; Company and (ii) the material terms of such Competing Transaction (but shall not be obligated to disclose the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) entity proposing the material terms and conditions of such Competing Transaction). The Company will keep Parent reasonably informed on a current basis of the status of, and details any material changes to, the terms of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementSigning Date, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary Subsidiary (the "Company RepresentativesCOMPANY REPRESENTATIVES"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to to:
(i) solicit or initiate, encourage, or knowingly encourage or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than ParentPurchaser, Newco or any affiliates thereof (a "Third PartyTHIRD PARTY") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 510% of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 510% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 510% of the assets of the Company and its Subsidiaries, taken as a whole, or 510% or more of any class of equity securities of the Company (a "Competing TransactionCOMPETING TRANSACTION"); ;
(ii) participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or ;
(iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
(Ab) Notwithstanding paragraph (a) above, if the Company receives a bona fide, unsolicited, written proposal or offer for a Competing Transaction by a Third Party, which the Board of Directors determines in good faith (after consulting its independent financial advisor)
(i) will result in in, or is reasonably likely to lead to, terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines in good faith that failure to take such an action may otherwise prohibited under paragraph (a) above would result in a breach of its fiduciary duties under applicable laws; and , (Bii) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) ), and (Ciii) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent Purchaser (each if as amended or restated restated, a "Superior Competing TransactionSUPERIOR COMPETING TRANSACTION"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b6.2(d), furnish information with respect to the Company and its subsidiaries Subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent Purchaser prior written notice that it intends to take such action. The .
(c) Notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company (including any committee thereof) shall be permitted to (A) withhold, withdraw or modify in a manner adverse to Purchaser, or publicly propose to withhold, withdraw or modify in a manner adverse to ParentPurchaser, its recommendation to the holders of the Company SharesShares as a result of any Competing Transaction, or (B) adopt or recommend, or propose publicly to adopt or recommend, any Competing Transaction (any action described in either clause (A) or (B) or in paragraph (h) below being referred to as a "COMPANY ADVERSE RECOMMENDATION CHANGE") and, concurrently therewith or thereafter, enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar contract constituting or related to any Competing Transaction, but only if (i) such a Third Party submits an unsolicited Competing Transaction that the Board of Directors believesdetermines, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may would result in a breach of fiduciary duties under applicable law and Laws, (ii) the Company shall have delivered to Parent Purchaser prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Competing Transaction, (iii) seven (7) business days have elapsed following delivery to Purchaser of written notice of such prior written notice and during such seven (7) business day period the Company has given Purchaser reasonable opportunity to discuss with the Company the Competing Transaction and any proposed amendments to this Agreement, and (iv) at the of end such seven (7) business day period the Board of Directors determines in good faith that the Competing Transaction continues to be reasonably likely to result in a Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with Transaction (taking into consideration any person conducted prior modifications to the date hereofterms hereof proposed by Purchaser), after consultation with its counsel and its independent financial advisor. Nothing contained in this Agreement shall prevent the Company or the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct or from making any disclosure to the stockholders of the Company that is required by applicable Laws.
(bd) The Company shall promptly advise Parent Purchaser orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge Knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, ; and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent Purchaser reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
(e) Purchaser and Newco agree and covenant that, in the event that a vote or consent of the Company's stockholders is required in connection with the approval of any Superior Competing Transaction, then:
(i) the total amount of Company Shares owned (of record or beneficially) by Purchaser Companies which are voted against any Superior Competing Transaction shall represent no more than twenty five percent (25%) of the issued and outstanding voting stock of the Company which are entitled to vote in respect of such Superior Competing Transaction as of the date of such stockholder vote; and
(ii) all Company Shares which are owned (of record or beneficially) by Purchaser Companies, which are entitled to vote in respect of such Superior Competing Transaction and which are not voted against such Superior Competing Transaction (the "PROXY SHARES") shall be voted for or voted against such Superior Competing Transaction, or abstained or not voted, in a manner which emulates the percentages of votes, abstentions and failures to vote by all of the other holders of all Company Shares which are entitled to vote in respect of such Superior Competing Transaction (the "EMULATED SHARES"). For example, if 40% of the Emulated Shares voted in favor of the Superior Competing Transaction, 20% of the Emulated Shares voted against the Superior Competing Transaction, and 40% of the Emulated Shares abstained or not voted, then 40% of the Proxy Shares must be voted in favor of the Superior Competing Transaction, 20% of the Proxy Shares must be voted against the Superior Competing Transaction, and 40% of the Proxy Shares must be abstained or not voted.
(f) Purchaser hereby waives, and agrees not to assert and to cause all Purchaser Companies not to assert, any appraisal rights any of the Purchaser Companies may have under the DGCL with respect to any Company Shares owned (of record or beneficially) by them in connection with a Superior Competing Transaction, provided that such waiver and agreements not to assert are conditioned upon and subject to the Company's compliance with Section 8.5(d).
(g) Purchaser hereby irrevocably appoints and constitutes the Secretary of the Company (the "PROXYHOLDER") as the agent, attorney and proxy of the Purchaser with respect to the Proxy Shares solely for purposes of causing the Proxyholder to vote the Proxy Shares as set forth in Sections 6.2(e)(ii) above and 6.11 below. The Proxyholder may not exercise such proxy rights with respect to any other matter. Such proxy rights shall be deemed coupled with an interest and are irrevocable prior to the termination of this Agreement; provided, however, that if this Agreement is terminated pursuant to Sections 8.3 or 8.4 hereof, then such proxy rights shall survive the termination of this Agreement solely with respect to votes in respect of the Superior Competing Transaction giving rise to such termination.
(h) Notwithstanding anything in this Agreement to the contrary, in the absence of a Competing Transaction, the Board of Directors (including any committee thereof) shall be permitted to make a Company Adverse Recommendation Change if the Board of Directors determines in good faith, after consultation with counsel, that failure to take such action would result in a breach of its fiduciary duties under applicable laws.
Appears in 1 contract
Sources: Merger Agreement (Cd&l Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives")Company, to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any of its Subsidiaries to, (i) solicit or initiate, encourage, or facilitatefacilitate or induce, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco Merger Sub or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined determined under Rule 13(d) 13d-3 of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company or any of its Subsidiaries pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company or any of its Subsidiaries (a "“Competing Transaction"”); (ii) participate in any discussions or negotiations regardingregarding any Competing Transaction, or furnish to any person Person any information or data with respect to or access to the properties ofof the Company or any of its Subsidiaries in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement agreement, arrangement or understanding with respect to any Competing Transaction, approve approve, endorse or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
. Notwithstanding the foregoing sentence, if, prior to the receipt of shareholder approval of this Agreement, the Company receives a bona fide, written proposal or offer for a Competing Transaction (for purposes of this sentence the references to “15%” in the definition of “Competing Transaction” shall be deemed to be references to “50%”) by a Third Party, which the Company Board determines in good faith (after consulting the Company Board’s independent financial advisor and outside legal counsel) (A) will is reasonably likely to result in terms which that are more favorable from a financial point of view to the holders of shares of Company Shares Capital Stock than the Merger and the other transactions contemplated by this Agreement andAgreement, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided provided, that the Company, including the Board of DirectorsCompany Board, and any of its advisors advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "“Superior Competing Transaction"”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided that the Company shall have delivered not provide any non-public information to Parent prior written notice that it intends any such Third Party unless the Company provides such non-public information pursuant to take a nondisclosure agreement and unless any such actionnon-public information is first provided to Parent. With respect to any such nondisclosure agreement entered into after the date hereof, the terms shall be no more favorable to the Third Party than the Confidentiality Agreement is to Parent. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in waive the provisions of any “standstill” agreement between the Company and a manner adverse to Parent, its recommendation Third Party to the holders of the Company Shares, but only if (i) extent necessary to permit such Third Party submits an unsolicited to submit a Competing Transaction that the Company Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Company Board of Directors from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule 14e-2 l4e-2 promulgated under the Exchange Act, (ii) making any disclosure to its shareholders required by applicable Law, rule or regulation or by the rules and regulations of the NYSE, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Company Board (after consultation with counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
(b) The Company shall promptly advise Parent orally and in writing writing, promptly after receipt thereof, of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any proposal for a Competing Transaction received by any officer or director of the Company or, to the knowledge Knowledge of the Company, any financial advisor, attorney or other advisor advisor, representative or representative employee of the Company; , and (ii) the material terms of such Competing Transaction (including the identity of the Third Party submitting entity proposing the Competing Transaction), and provide a copy of such proposal for a Competing Transaction to Parent if such proposal is in writing. The Company shall keep Parent reasonably informed of the status of, and any material changes to, the terms of any such Competing Transactions Transaction proposal and all discussions and negotiations with respect thereto in a timely manner.
(c) In the event that prior to receipt of shareholder approval of this Agreement, the Company Board determines that it has received a proposal for a Superior Competing Transaction and determines in good faith (after consultation with its outside legal advisor) that taking any or making such inquiryall of the following actions is necessary in order to comply with its fiduciary duties under applicable Law, and provided, that neither the Company nor any representative of the Company has breached any of the provisions of this Section 6.2, the Company and the Company Board may withdraw, modify or change the Company Board’s approval or recommendation of this Agreement or the Merger, provided, that, prior to doing so, (iiiA) the Company shall deliver written notice to Parent (a “Competing Transaction Notice”) advising Parent that the Company and the Company Board intend to take such action(s) and specifying the reasons therefor, including the material terms and conditions of such any Superior Competing Transaction. The Company will keep Parent reasonably informed on a current Transaction that is the basis of the status proposed action by the Company and details the Company Board, (B) during the 72 hour period following delivery of any the Competing Transaction Notice to Parent (the “Notice Period”), the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Competing Transaction ceases to constitute (including amendments in the judgment of the Company Board, after consultation with its financial advisors and proposed amendmentsoutside legal advisors), a Superior Competing Transaction, and (C) proposal the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, that such Competing Transaction continues to constitute a Superior Competing Transaction; provided, further, that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Competing Transaction and the Company Board in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or inquiry form of consideration in such Competing Transaction shall be deemed a timely mannermaterial revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 6.2(c) with respect to such new written notice and (2) in the event the Company Board does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make change its recommendation pursuant to this Section 6.2(c), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change
(d) Notwithstanding any change by the Company Board of its recommendation, the Company shall cause the approval and adoption of this Agreement to be submitted to a vote of the Company’s shareholders at the Shareholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Iowa Telecommunications Services Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than ParentEastern, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Eastern or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 4.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
(Ab) will result in terms which are more favorable from a financial point of view Notwithstanding the foregoing sentence or anything to the holders contrary in this Agreement, if the Company receives (in the absence of any violation of this Section 4.2) a bonafide, unsolicited written proposal or offer for a Competing Transaction prior to the receipt of the Company Shares than the Merger Shareholder Approval and the other transactions contemplated by this Agreement andthat has not been withdrawn, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including which the Board of Directors, acting reasonably and in good faith (after consultation with the Company’s outside legal counsel and financial advisor), determines by majority vote (excluding any members of its advisors shall be permitted to contact the Board of Directors that are not independent of the Third Parties making such Third Party and its advisors solely offer for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (Ca Competing Transaction) is subject to a confidentiality agreement with such Third Party on terms no less favorable superior to the Companyterms of this Agreement based upon the financial terms of the proposed Competing Transaction, in all material respects, than the confidentiality agreement with Parent proposed timing of the Competing Transaction or the likelihood that such Competing Transaction will be consummated (each if amended or restated a "“Superior Competing Transaction"”), then the Company may, in response to an such unsolicited request therefor proposal or offer and subject to compliance with this Section 6.2(b)4.2, furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided that the Company shall have delivered not provide any non-public information to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) any such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) unless the Company shall have delivered provides such non-public information pursuant to Parent prior written notice that it intends to take such action, including therein a nondisclosure agreement at least as restrictive as the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereofConfidentiality Agreement (defined below). Nothing contained in this Agreement shall prevent the Board of Directors from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act, (ii) making any disclosure to the Company’s shareholders required by applicable Law, rule or regulation, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Board of Directors (after consultation with its counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
(bc) Subject to subparagraph (d) below, if the Board of Directors determines that it has received a proposal for a Superior Competing Transaction and reasonably determines in good faith (after consultation with the Company’s outside counsel and financial advisors) that taking any or all of the following actions is necessary in order to comply with its fiduciary duties under applicable Law, and provided, that neither the Company nor any representative of the Company is and would not as a result be in breach of any of the provisions of this Section 4.2, the Company and the Board of Directors may (i) withdraw, modify or change the Board of Director’s approval or recommendation of this Agreement or the Merger, (ii) approve or recommend to the Company’s shareholders such Superior Competing Transaction, (iii) terminate this Agreement in accordance with Section 6.4(ii), and/or (iv) publicly announce the Board of Director’s intention to do any or all of the foregoing; provided, that in any such event the Company shall timely pay any amounts owing to Eastern as a result thereof pursuant to Section 6.5.
(d) The Company shall promptly advise Parent orally and in writing of (i) not take any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, actions referred to in Section 4.2(b) and the knowledge Board of Directors shall not take any of the Companyactions referred to in Section 4.2(c) unless the Company shall have delivered to Eastern prior written notice advising Eastern that it intends to take such action, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) which written notice shall state the material terms and conditions of such the applicable Superior Competing Transaction. The parties hereto agree that, in the event any such written notice is delivered pursuant hereto, before the Company will takes any action referred to in Section 4.2(c), Eastern shall be provided with three business days from the date of delivery of such notice to agree to make adjustments to the terms and conditions of this Agreement, and the Company shall negotiate in good faith with respect thereto, to match or improve upon the economic or other terms of the purportedly Superior Competing Transaction. In addition, the Company shall notify Eastern as promptly as reasonably practicable, and use its best efforts to provide such notice within one business day, following receipt by the Company (or any of its advisors) of any proposal for a Competing Transaction or any written request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries by any Third Party that indicates it may be considering making, or has made, a proposal for a Competing Transaction (including the material terms and conditions of any such proposal, indication of interest or request relating to a Competing Transaction). The Company shall keep Parent Eastern reasonably informed informed, on a current basis basis, of the status and material details of any such proposal, indication or request (and any modification or amendment thereof), including of any meeting of its Board of Directors (or any committee thereof) at which its Board of Directors (or such committee) is reasonably expected to consider any Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely mannerTransaction.
Appears in 1 contract
Sources: Merger Agreement (Netmanage Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementNovember 21, 2001, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing Transaction"); (ii) participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement agreement; or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.. 41
(A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, ; and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Conestoga Enterprises Inc)
No Solicitation of Transactions. (a) The Company Equityholder agrees that, as of the date of this Agreement, it hasnot to, and has caused each officershall cause his, director her or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries Affiliates not to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, through any inquiries relating toofficer, director, equityholder, affiliate, employee, agent, representative or otherwise (including, without limitation, through any investment banker, financial advisor, attorney or accountant), (a) submit, solicit, initiate or encourage the submission of, of any proposal or offer, whether in writing or otherwise, offer (an “Acquisition Proposal”) from any person Person (including any of its officers, directors, partners, shareholders, affiliates, employees, agents and other than Parentrepresentatives) relating to any (i) reorganization, Newco dissolution or any affiliates thereof recapitalization of Seller, (a "Third Party"ii) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or acquisition of or involving Seller, (iii) sale or other business combinationdisposition of all or any substantial portion of the equity of Seller, (iv) sale or licensing of shares all or any material assets of stockSeller or any interest therein other than in the ordinary course of business, sale of assets, tender offer, exchange offer or (v) similar transaction or series business combinations involving Seller or its business or assets in any form (including any debt or equity financing thereof), or (vi) any other material transaction, the consummation of related transactionswhich would prevent, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% impede, delay or have an adverse effect on the consummation of the assets of the Company and its SubsidiariesContemplated Transactions or (b) assist, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing Transaction"); (ii) participate in any discussions or negotiations regarding, or furnish to any person other Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
(A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do, any of the Company foregoing. Equityholder agrees that Equityholder and his, her or its subsidiaries Affiliates, directors, officers, agents and representatives, as applicable, will cease and cause to be terminated any and participate in all contacts, discussions and negotiations directly or through with third parties (other than Buyer and its representatives withAffiliates, such Third Partyagents and representatives) regarding any Acquisition Proposal, provided and hereby represents and warrants that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors none of the Company shall be permitted to withhold, withdraw foregoing has entered into any executory agreement or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with accepted any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Actcommitment concerning any Acquisition Proposal.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives")Company, to immediately cease and cause to be terminated any all existing activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any of its Subsidiaries to, (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company (a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
. Notwithstanding the foregoing sentence or anything to the contrary in this Agreement, if the Company receives (in the absence of any violation of this Section 6.2) a bona fide, written proposal or offer for a Competing Transaction by a Third Party prior to the receipt of the Company Shareholder Approval, which the Special Committee determines in good faith (after consulting the Special Committee’s independent financial advisor) (A) will is reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement andAgreement, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided provided, that the Company, including the Board of DirectorsSpecial Committee, and any of its advisors advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "“Superior Competing Transaction"”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party. Notwithstanding the foregoing, provided that the Company shall have delivered not provide any non-public information to Parent prior written notice that it intends any such Third Party unless the Company provides such non-public information pursuant to take such actiona nondisclosure agreement. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in waive the provisions of any “standstill” agreement between the Company and a manner adverse to Parent, its recommendation Third Party to the holders of the Company Shares, but only if (i) extent necessary to permit such Third Party submits an unsolicited to submit a Competing Transaction that the Board of Directors Special Committee believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors Special Committee from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule 14e-2 l4e-2 promulgated under the Exchange Act, (ii) making any disclosure to its shareholders required by applicable Law, rule or regulation or by the rules and regulations of NASDAQ, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Special Committee (after consultation with counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
(b) The Company shall promptly advise Parent orally and in writing within three (3) business days after receipt of any proposal or offer for a Competing Transaction made in accordance with Section 6.2(a) of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any proposal for a Competing Transaction received by any officer or director of the Company or, to the knowledge Knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; , and (ii) the material terms of such Competing Transaction (but not the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) entity proposing the material terms and conditions of such Competing Transaction). The Company will shall keep Parent reasonably informed on a current basis of the status of, and details any material changes to, the terms of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
(c) In the event the Special Committee determines that it has received a proposal for a Superior Competing Transaction and determines in good faith (after consultation with counsel) that taking any or all of the following actions is necessary in order to comply with its fiduciary duties under applicable Law, and provided, that neither the Company nor any representative of the Company has breached any of the provisions of this Section 6.2, the Company and the Special Committee may (i) withdraw, modify or change the Board of Director’s approval or recommendation of this Agreement or the Merger, (ii) approve or recommend to the Company’s shareholders such Superior Competing Transaction, (iii) terminate this Agreement in accordance with Section 8.4(iii), and (iv) publicly announce the Board of Director’s intention to do any or all of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Featherlite Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company RepresentativesCOMPANY REPRESENTATIVES"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third PartyTHIRD PARTY") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing TransactionCOMPETING TRANSACTION"); (ii) participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
(A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing TransactionSUPERIOR COMPETING TRANSACTION"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b), furnish information with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of After the date of this Agreementhereof, the Company shall not, nor shall it haspermit any Company Subsidiary to, and has caused each nor shall it authorize or permit any officer, director director, trustee or employee of, or any investment banker, attorney or other advisor or representative of of, the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives Subsidiary to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco the Purchaser Parties or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 515% of the assets of the Company and its subsidiariesthe Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership pursuant to a merger, consolidation or other business combination, sale of shares of stockbeneficial interests, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 515% of the assets of the Company and its the Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership (a "“Competing Transaction"”); (ii) participate in any discussions or negotiations regarding, or furnish to any person any information or data with respect to or access to the properties ofof the Company or any Company Subsidiary with respect to, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement (written or oral) with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the REIT Merger, the OP Merger and the other transactions contemplated by this Agreement.
; provided, however, that notwithstanding anything to the contrary contained herein, (A) will result the Company and the Operating Partnership may take such actions reasonably necessary or otherwise appropriate in connection with the transactions contemplated by the Industrial Sale Agreement and/or the Commercial Properties Sale and (B) the Company may participate in ordinary course investor relations discussions relating to ordinary course transactions in the Company’s equity securities. Notwithstanding the foregoing sentence, prior to the Effective Time, if the Company receives an unsolicited bona fide, written proposal or offer for a Competing Transaction by a Third Party, which the Company Board determines in good faith (after consulting the Company Board’s independent financial advisor and independent legal counsel) (A) is on terms which are more favorable from a financial point of view to the holders of Company Common Shares than the REIT Merger and the other transactions contemplated by this Agreement andAgreement, after consultation with counsel(B) is not subject to any material contingency, including any contingency relating to financing, to which neither (1) the Company Board determines that failure may likely be overcome or addressed nor (2) the other party thereto has reasonably demonstrated in its written offer its ability to take overcome or address, including the receipt of government consents or approvals (including any such action may result in a breach of its fiduciary duties approval required under applicable laws; the HSR Act), and (BC) is reasonably capable of being consummated (provided provided, that the Company, including the Board of DirectorsCompany Board, and any of its advisors shall be permitted to contact such Third Party and its advisors and financing sources solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) and (C) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "“Superior Competing Transaction"”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b5.4(b), furnish information with respect to the Company and its subsidiaries to the Company Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that subject to a confidentiality agreement not less favorable to the Company shall have delivered than the confidentiality and standstill agreements referred to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereofSection 5.1. Nothing contained in this Agreement shall prevent the Company Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct or from making any other disclosure required by applicable Law.
(b) The Company and each of the Company Subsidiaries will cease and cause to be terminated any existing discussions or negotiations with any Persons conducted or commenced heretofore with respect to, or that could be expected to lead to, a Superior Competing Transaction and will cause each of their respective trustees, directors, officers, employees, advisors, consultants and agents to comply with such obligations.
(c) The Company shall promptly advise Parent the Purchaser Parties orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director trustee of the Company or, to the knowledge Knowledge of the Company, any employee, financial advisor, attorney or other advisor or representative of the Company; Company or any Company Subsidiary, (ii) the material terms of such Competing Transaction (including a copy of any written proposal) and (iii) the identity of the Third Party submitting person making the proposal or offer for any such Competing Transactions Transaction or making such inquiryinquiry promptly following receipt by the Company or any officer or trustee of the Company or, and (iii) to the material terms and conditions Knowledge of the Company, any employee, financial advisor, attorney or other advisor or representative of the Company or any Company Subsidiary of such Competing TransactionTransaction proposal or inquiry. The Company will keep Parent reasonably the Purchaser Parties informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner. None of the Purchaser Parties or their respective affiliates or advisors shall contact any Person regarding such Competing Transaction or otherwise interfere with such Competing Transaction.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hasShareholder will not, and has caused each officershall cause the Company, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease Subsidiaries and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries their respective Affiliates not to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, through any inquiries relating toofficer, director, manager or the submission of, agent of any proposal or offer, whether in writing of them or otherwise, from initiate, solicit or encourage (including by way of furnishing non-public information or assistance), or enter into negotiations of any person type, directly or indirectly, or enter into a confidentiality agreement, letter of intent or purchase agreement, merger agreement or other similar agreement with any Person other than Parent, Newco or any affiliates thereof (the Purchaser with respect to a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) sale of all or more than 5% any portion of the assets of the Company and its subsidiaries, taken as a wholeor any Company Subsidiary, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other consolidation, business combination, sale of shares all or any portion of stockthe capital stock of the Company or any Company Subsidiary, or the liquidation or similar extraordinary transaction with respect to the Company or any Company Subsidiary. The Shareholder shall notify the Purchaser orally (within one Business Day) and in writing (as promptly as practicable) of all relevant terms of (i) any inquiry or proposal by a third party to do any of the foregoing or (ii) any inquiry or proposal by a third party with respect to a sale of assets, tender offer, exchange offer all or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% any substantial portion of the assets of the Company and its Subsidiaries, taken as a wholeShareholder, or 5% a merger, consolidation, business combination, sale of all or more of any class of equity securities substantial portion of the Company (a "Competing Transaction"); (ii) participate in any discussions capital stock of the Shareholder or negotiations regarding, the liquidation or furnish to any person any information or data similar extraordinary transaction with respect to the Shareholder, that in each case the Shareholder or access the Company or any Company Subsidiary or any of their respective Affiliates or any of their respective officers, directors, partners, managers, employees, investment bankers, financial advisors, attorneys, accountants or other representatives may receive relating to any of such matters. In the event such inquiry or proposal is in writing, the Shareholder shall deliver to the properties ofPurchaser a copy of such inquiry or proposal together with such written notice.
(b) Nothing in this Section 7.4 shall prohibit the Shareholder from entering into any negotiations with respect to, or take any confidentiality agreement, letter of intent or purchase agreement, merger agreement or other action similar agreement with any Person (an "Acquiror") with respect to knowingly facilitate a sale of all or any portion of the making assets of the Shareholder, or a merger, consolidation, business combination, sale of all or any substantial portion of the capital stock of the Shareholder or the liquidation or similar extraordinary transaction with respect to the Shareholder (any such transaction, a "Shareholder Acquisition") provided that, as a condition to the consummation of any proposal such Shareholder Acquisition, all the obligations of the Shareholder under this Agreement or any Ancillary Document shall be expressly assumed by such Acquiror in accordance with Section 7.12; provided further, that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) Shareholder shall not enter into any agreement with respect to any Competing Transaction, approve a Shareholder Acquisition the terms of which would reasonably be expected to prevent or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail materially delay the ability of the Sellers to consummate the Merger and the other transactions contemplated by this Agreement.
(A) will result in terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines that failure to take such action may result in a breach of its fiduciary duties under applicable laws; and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability Ancillary Documents in accordance with their terms; provided, further, that a Shareholder Acquisition shall in no event include any negotiations with respect to, or any confidentiality agreement, letter of consummation) and (C) is subject to a confidentiality intent or purchase agreement, merger agreement or other similar agreement with such Third Party on terms no less favorable any Person other than the Purchaser with respect to the Company, in all material respects, than the confidentiality agreement with Parent (each if amended or restated a "Superior Competing Transaction"), then assets of the Company mayor any Company Subsidiary or the Conveyed Assets, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b)or a merger, furnish information consolidation, business combination, sale of all or any portion of the capital stock of the Company or any Company Subsidiary, or the liquidation or similar extraordinary transaction with respect to the Company and its subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent prior written notice that it intends to take such action. The Board of Directors of the Company shall be permitted to withhold, withdraw or modify in a manner adverse to Parent, its recommendation to the holders of the Company Shares, but only if (i) such Third Party submits an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may result in a breach of fiduciary duties under applicable law and (ii) the Company shall have delivered to Parent prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with any person conducted prior to the date hereof. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
(b) The Company shall promptly advise Parent orally and in writing of (i) any Competing Transaction or any inquiry with respect to Company Subsidiary or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely mannerConveyed Assets.
Appears in 1 contract
Sources: Stock Purchase Agreement (CNF Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementSigning Date, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary Subsidiary (the "Company Representatives"“COMPANY REPRESENTATIVES”), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to to:
(i) solicit or initiate, encourage, or knowingly encourage or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than ParentPurchaser, Newco or any affiliates thereof (a "Third Party"“THIRD PARTY”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 510% of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 510% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 510% of the assets of the Company and its Subsidiaries, taken as a whole, or 510% or more of any class of equity securities of the Company (a "Competing Transaction"“COMPETING TRANSACTION”); ;
(ii) participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or ;
(iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement.
(Ab) Notwithstanding paragraph (a) above, if the Company receives a bona fide, unsolicited, written proposal or offer for a Competing Transaction by a Third Party, which the Board of Directors determines in good faith (after consulting its independent financial advisor) (i) will result in in, or is reasonably likely to lead to, terms which are more favorable from a financial point of view to the holders of Company Shares than the Merger and the other transactions contemplated by this Agreement and, after consultation with counsel, determines in good faith that failure to take such an action may otherwise prohibited under paragraph (a) above would result in a breach of its fiduciary duties under applicable laws; and , (Bii) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) ), and (Ciii) is subject to a confidentiality agreement with such Third Party on terms no less favorable to the Company, in all material respects, than the confidentiality agreement with Parent Purchaser (each if as amended or restated restated, a "Superior Competing Transaction"“SUPERIOR COMPETING TRANSACTION”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(b6.2(d), furnish information with respect to the Company and its subsidiaries Subsidiaries to and participate in discussions and negotiations directly or through its representatives with, such Third Party, provided that the Company shall have delivered to Parent Purchaser prior written notice that it intends to take such action. The .
(c) Notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company (including any committee thereof) shall be permitted to (A) withhold, withdraw or modify in a manner adverse to Purchaser, or publicly propose to withhold, withdraw or modify in a manner adverse to ParentPurchaser, its recommendation to the holders of the Company SharesShares as a result of any Competing Transaction, or (B) adopt or recommend, or propose publicly to adopt or recommend, any Competing Transaction (any action described in either clause (A) or (B) or in paragraph (h) below being referred to as a “COMPANY ADVERSE RECOMMENDATION CHANGE”) and, concurrently therewith or thereafter, enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar contract constituting or related to any Competing Transaction, but only if (i) such a Third Party submits an unsolicited Competing Transaction that the Board of Directors believesdetermines, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction and after consultation with counsel, determines that failure to take such action may would result in a breach of fiduciary duties under applicable law and Laws, (ii) the Company shall have delivered to Parent Purchaser prior written notice that it intends to take such action, including therein the identity of such Third Party and the terms and conditions of such Competing Transaction, (iii) seven (7) business days have elapsed following delivery to Purchaser of written notice of such prior written notice and during such seven (7) business day period the Company has given Purchaser reasonable opportunity to discuss with the Company the Competing Transaction and any proposed amendments to this Agreement, and (iv) at the of end such seven (7) business day period the Board of Directors determines in good faith that the Competing Transaction continues to be reasonably likely to result in a Superior Competing Transaction. The Company, its officers, directors, advisors, and representatives shall immediately cease all activities, discussions and negotiations, if any, with Transaction (taking into consideration any person conducted prior modifications to the date hereofterms hereof proposed by Purchaser), after consultation with its counsel and its independent financial advisor. Nothing contained in this Agreement shall prevent the Company or the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct or from making any disclosure to the stockholders of the Company that is required by applicable Laws.
(bd) The Company shall promptly advise Parent Purchaser orally and in writing of (i) any Competing Transaction or any inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the knowledge Knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company; (ii) the identity of the Third Party submitting such Competing Transactions or making such inquiry, ; and (iii) the material terms and conditions of such Competing Transaction. The Company will keep Parent Purchaser reasonably informed on a current basis of the status and details of any such Competing Transaction (including amendments and proposed amendments) proposal or inquiry in a timely manner.
(e) Purchaser and Newco agree and covenant that, in the event that a vote or consent of the Company’s stockholders is required in connection with the approval of any Superior Competing Transaction, then:
(i) the total amount of Company Shares owned (of record or beneficially) by Purchaser Companies which are voted against any Superior Competing Transaction shall represent no more than twenty five percent (25%) of the issued and outstanding voting stock of the Company which are entitled to vote in respect of such Superior Competing Transaction as of the date of such stockholder vote; and
(ii) all Company Shares which are owned (of record or beneficially) by Purchaser Companies, which are entitled to vote in respect of such Superior Competing Transaction and which are not voted against such Superior Competing Transaction (the “PROXY SHARES”) shall be voted for or voted against such Superior Competing Transaction, or abstained or not voted, in a manner which emulates the percentages of votes, abstentions and failures to vote by all of the other holders of all Company Shares which are entitled to vote in respect of such Superior Competing Transaction (the “EMULATED SHARES”). For example, if 40% of the Emulated Shares voted in favor of the Superior Competing Transaction, 20% of the Emulated Shares voted against the Superior Competing Transaction, and 40% of the Emulated Shares abstained or not voted, then 40% of the Proxy Shares must be voted in favor of the Superior Competing Transaction, 20% of the Proxy Shares must be voted against the Superior Competing Transaction, and 40% of the Proxy Shares must be abstained or not voted.
(f) Purchaser hereby waives, and agrees not to assert and to cause all Purchaser Companies not to assert, any appraisal rights any of the Purchaser Companies may have under the DGCL with respect to any Company Shares owned (of record or beneficially) by them in connection with a Superior Competing Transaction, provided that such waiver and agreements not to assert are conditioned upon and subject to the Company’s compliance with Section 8.5(d).
(g) Purchaser hereby irrevocably appoints and constitutes the Secretary of the Company (the “PROXYHOLDER”) as the agent, attorney and proxy of the Purchaser with respect to the Proxy Shares solely for purposes of causing the Proxyholder to vote the Proxy Shares as set forth in Sections 6.2(e)(ii) above and 6.11 below. The Proxyholder may not exercise such proxy rights with respect to any other matter. Such proxy rights shall be deemed coupled with an interest and are irrevocable prior to the termination of this Agreement; provided, however, that if this Agreement is terminated pursuant to Sections 8.3 or 8.4 hereof, then such proxy rights shall survive the termination of this Agreement solely with respect to votes in respect of the Superior Competing Transaction giving rise to such termination.
(h) Notwithstanding anything in this Agreement to the contrary, in the absence of a Competing Transaction, the Board of Directors (including any committee thereof) shall be permitted to make a Company Adverse Recommendation Change if the Board of Directors determines in good faith, after consultation with counsel, that failure to take such action would result in a breach of its fiduciary duties under applicable laws.
Appears in 1 contract